Judgments Kania, C. J.-This appeal has to be decided in accordance with the judgments just delivered in Civil Appeal No. XI of 19481, as the points of law involved in both are the same. For the reasons contained in my judgment in that appeal, when applied to the facts here, this appeal must fail and is therefore dismissed with costs. S. Fazl Ali, J.-I am of the same view as my Lord the Chief Justice. B.K. Mukherjea, J.-I am of the same view as my Lord the Chief Justice. Majajan, J.-These appeals from two decisions of the Madras High Court can conveniently be disposed of by one judgment, as they raise the same question of law, namely, “whether a person who is a de facto manager of the estate of a Hindu minor can in law execute a promissory note in the name of the minor in respect of money borrowed for necessary purposes and thereby bind the minor’s estate”. A Full Bench of the High Court held that a de facto manager cannot bind a minor’s estate by a promissory note executed by him in the minor’s name. It was observed that it was one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a nogotiable instrument on the minor’s behalf and that a power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt. The question is a very important one of the general interest. There is a considerable body of authority in decided cases which touches it, but it is not concluded by any judgment of the Privy Council or of this Court. It is necessary to set out the facts giving rise to both the appeals before considering thd question of law raised in them. One Chelamayya Chowdari was the resident of Mynenivaripalem, which is one of the hamlets of Dhulipudi. He was 1. Sriramulu v. Pundarikakshayya, (1949) F.L.J. 288. the village munsif of the place and is said to be a rich and influential person, leading a life in high style. He was an English educated gentleman and was the adopted son of Basava Chowdari, his paternal uncle. He had two wives, but no children from either of them. He was 1. Sriramulu v. Pundarikakshayya, (1949) F.L.J. 288. the village munsif of the place and is said to be a rich and influential person, leading a life in high style. He was an English educated gentleman and was the adopted son of Basava Chowdari, his paternal uncle. He had two wives, but no children from either of them. On the 20th November, 1924, he executed and registered a will, under which he conferred authority on his second wife, Sri Krishnamma, to adopt a boy to him. Chelamayya Chowdari died on the 9th January, 1925 and was survived by his two widows. In pursuance of the authority conferred upon Sri Krishnamma, she adopted her sister’s son the plaintiff in both the suits out of which these appeals have arisen. She died in November, 1928 and after her death plaintiff’s natural father, China Seshayya, entered upon the management of his estate, and continued managing it till 9th December, 1937 the date on which the plaintiff attained majority. On the 2nd June, 1932 China Seshayya acting as the de facto manager of the minor’s estate executed a sale deed in favour of the defendant, Kondamudi Sriramulu, in respect of the lands mentioned in the schedule to the plaint, about 21 acres in area, for a consideration of Rs. 14,873 comprised as follows: (a) Rs. 75 paid in cash, representing the cost of stamp and registration charges. (b) Rs. 10,207-6-6 due on foot of a promissory note dated 22nd June, 1931, executed by China Seshayya, the de facto guardian, for a sum of Rs. 9,251-11-6. This amount was due on an earlier promissory note of 23rd April, 1928, executed by Sri Krishnamma for Rs. 6,802-11-6.This last note was for a consolidated sum due on two promissory notes of 23rd April, 1925, by Sri Krishnamma for Rs. 3,802 and Rs. 1,200 respectively. The amount of Rs. 1,200 had been raised by her after the death of her husband for the necessities of the minor, while the amount of Rs. 3,802 was on account of a loan borrowed by Chelamayya Chowdari himself on 1st February, 1923, from the defendant, his pleader. (e) Rs. 4,590-9-6 to be paid to one Gutta Punnayya in part discharge of the promissory note which China Seshayya as de facto manager had executed in his favour on nth November 1931,in renewal of an earlier promissory note of the 12th November, 1928. (e) Rs. 4,590-9-6 to be paid to one Gutta Punnayya in part discharge of the promissory note which China Seshayya as de facto manager had executed in his favour on nth November 1931,in renewal of an earlier promissory note of the 12th November, 1928. This last note itself renewed an earlier note by Sri Krishnamma in favoir of the same creditor. On 1st September, 1919,chelamayya Chowdari had borrowed money from Gutta Punnayya and had executed in his favour a promissory note for Rs. 4,082-9-6. This note was renewed by him on 27th August 1022. Later on this promissory note was renewed by his widow, Sri Krishnamma, on the 12th July,1925 and then on 8th July, 1928. The suit out of which Civil Appeal No. XI of 19481 arises, was instituted on 9th December, 1940, for possession of the lands conveyed by means of the sale of 2nd June, 1932. It was alleged in the plaint that the sale was not supported by consideration and was not binding on the plaintiff, that the said China Seshawa. was neither the natural nor the de jure guardian but only an intermeddler and had no authority to borrow or to execute a new promissory note on behalf of the plaintiff that the promissory note of 22nd June, 1931, recited in the sale deed amounted to an acknowledgment of a barred debt by an unauthorized person, that the promissory note in favour of Gutta Punnayya was also not binding on the plaintiff and that the sale deed was for a grossly inadequate consideration as the suit lands could easily fetch a considerably larger amount than that for which they were sold. The defence to the suit was that Chelamayya Chowdari borrowed from the defendant a sum of Rs. 3,000 for the purpose of trade and executed a promissory note, that he had also civil and revenue litigations which continued for a lone time in which the defendant was engaged as his pleader and Chelamayya Chowdari thus became indebted to him both in respect of fees and other expenses, that after his death his widow Sri Krishnamma, after going into the accounts executed a promissory note in his favour on the 23rd April, 1925, for Rs. 1,200 and on the same date she also renewed an earlier promissory note executed by her husband that on the 23rd April, 1928, she executed in his favour a consolidated promissory note in discharge of the said two promissory notes, that after the death of Sri Krishnamma, China Seshayya as the natural father of the plaintiff and manager of the estate renewed the promissory note on the 22nd June, 1931 for a sum of Rs. 9,433-14-6 because the debt was getting time barred and the defendant was about to file a suit on the re-opening day of the Court after the summer recess but he did not do so at the request of China Seshayya who promised to renew the earlier promissory note and actually fulfilled this promise. It was also pleaded that the promissory note in favour of Gutta Punnayya was also in lieu of debts of the plaintiff’s father renewed by the widow and subsequently renewed by China Seshayya. In these circumstances it was contended that the sale by the natural father as de facto manager of the minor’s estate was for legal necessity and binding on the plaintiff. A number of other pleas were also raised which are no longer material for the decision of the appeal. The only issue that is relevant for the present purpose is issue II which runs thus: “Whether the sale deed dated 2nd June, 1932. is supported by consideration, valid and binding upon the plaintiff?” The trial Judge gave a decision on this issue in favour of the defendant and held that the sale deed was supported by consideration and was binding on the plaintiff. is supported by consideration, valid and binding upon the plaintiff?” The trial Judge gave a decision on this issue in favour of the defendant and held that the sale deed was supported by consideration and was binding on the plaintiff. The learned Subordinate Judge said: “It is clear that if such renewal had not been made, the defendant would have filed a suit agains the plaintiff and got an attachment of all his properties, which would have ended only in serious loss to him and that with a view to avert that inury to the estate, the de facto guardian in the exercise of his discretion renewed the debt by executing the sale deed; and as already stated, the prior debt was not extinguished on that date, but remained a claim capable of being enforced against a minor on that date with the result that the renewal cannot be said to be a renewal of an extinguished claim.” Against this decision an appeal was preferred by the plaintiff to the High Court of Madras. In the High Court the position was accepted that the promissory notes executed by the minor’s adoptive father were executed for full consideration, that the de facto guardian had administered the minor’s estate to the best of his ability and that in executing the promissory note, Exhibit D-2, the de facto guardian did so in order to ward off a suit against the minor’s estate threatened by the creditor. The judgment of the High Courts records that for the purposes of the appeal it was conceded that the promissory notes executed by Chelamayya Chowdari were executed for full consideration and that the debts were binding on the estate up to three years after the last renewals by Sri Krishnamma. On the basis of these concessions the case was argued before the Full Bench1 and it was held that the de facto guardian could not bind the minor’s estate by a promissory note executed by him in the minor’s name and the sale therefore of the 2nd June, 1932, was without consideration. In the result the plaintiff’s appeal was allowed and a decree for possession of the suit lands was granted in his favour subject to the charge on the properties in favour of the defendant in respect of a sum of Rs. In the result the plaintiff’s appeal was allowed and a decree for possession of the suit lands was granted in his favour subject to the charge on the properties in favour of the defendant in respect of a sum of Rs. 4,590-9-6, the amount that had admittedly been paid by him to Gutta Punnayya towards discharge of a decree obtained asaint the estate of the minor. A decree was also made in favour of the plaintiff for mesne profits at the rate of Rs.1,000 per annum. On the defendant’s application a certificate was granted for preferring an appeal to His Majesty in Council against the decree of the High Court. As the records had not been transmitted to the Privy Council the appeal was transmitted to this Court and was heard by us. Civil Appeal No. XII of 1948 is directed against the decision of the High Court of Madras in Second Appeals Nos. 1342 and 1343 of 1944.2 Leave to appeal was also granted in these appeals and they also were transmitted to this Court. The two suits which gave rise to these two second appeals arose in the following: circumstances. On the 24th October, 1933, an agreement was arrived at between China Seshayya, the de facto manager of the plaintiff’s estate and the first defendant Tadavarti Bapayya, under which 9 acres 11 cents of land belonging to the minor, were to be conveyed to the first defendant for Rs. 9,000. The whole of the consideration for the sale was on the foot of a promissory note dated 19th September 1931, for a sum of Rs.7.845-14-1, executed by China Seshayya in favour of the first defendant. This promissory note had been given in lieu of an earlier promissory note of 21st September, 1928, executed by him in favour of the same defendant for Rs. 5,725-5-7. This had renewed a promissory note dated 6th April, 1928, for a sum of Rs. 5,416-5-11 executed by Sri Krishnamma in favour of the defendant. The history of this promissory note is as follows.: Chelamayya Chowdari, the adoptive father of the plaintiff, had money-lending business with the first defendant, a money-lender. On the 5th June, 1923, he executed in his favour a promissory note for Rs. 1,465-3-5. After his death, his widow Sri Krishnamma for herself and on behalf of her son executed on 16th April, 1925, a promissory note for Rs. On the 5th June, 1923, he executed in his favour a promissory note for Rs. 1,465-3-5. After his death, his widow Sri Krishnamma for herself and on behalf of her son executed on 16th April, 1925, a promissory note for Rs. 4,540-6-8 in favour of the first defendant. Rs. 2,480-6-8 were due on Chelamayya Chowdari’s promissory note, and Rs. 2,060 were borrowed by the lady in cash for effecting repairs to the house and improving the lands. The total sum due on the foot of the promissory note of 19th September, 1931. on the 24th October, 1933, was Rs. 9,883-3-0, 9 acres 11 cents of land was agreed to be sold for Rs. 9,000 and for the balance of Rs. 883-3-0 a promissory note was promised to be given to the first defendant by China Seshayya. In pursuance of the agreement of 24th October, 1933, a conveyance was executed in favour of the first defendant on the 17th August, 1934, and a promissory note for Rs. 883-3-0 was also executed. The plaintiff on attaining majority instituted the suit out of which Civil Appeal No. XII of 1948, arises, on the 9th December, 1940, and claimed possession of the plaint properties and mesne profits. This claim was based on grounds similar to those mentioned in the suit which has given rise to Appeal No. XI of 19481. It was contended that China Seshayya had no right to renew the promissory notes or to make the sale and there was no necessity for these transactions and they were not binding on the plaintiff. A number of defences were raised to the suit. Inter alia, it was contended that the sale deed dated 17th August, 1034, was valid and binding. The trial Judge dismissed the suit of the plaintiff holding that China Seshayya as the de facto guardian of the minor could alienate his property, that he was recognized by every body concerned as the de facto guardian that if he did not step in and did not renew the debt immediately after the death, of Sri Krishnamma, the defendants would have rushed to Court, obtained a decree and sold away the plaintiff’s properties through Court and realized his. debt that it was China Seshayya’s prudence that saved the plaintiff’s estate at that time, that under pressure from the creditor he was obliged to execute Exhibit D-4 and subsequently renew the transaction and that the settlement, which was. arrived at in October, 1933, for the liquidation of the debt, as recited in Exhibit D-1 was for the benefit of the plaintiff’s estate. On appeal to the court of the District Judge by the plaintiff, this decision was modified. The learned District Judge held that the loan of Rs. 2,060 borrowed by Sri Krishnamma had not been proved to be for necessity or for benefit of the estate. He was of the opinion that there was no evidence to show what the family expenses were for which the loan was taken and what the representation was to the lender regarding the family expenses. The sale however was held to be binding on the plaintiff to the extent of his father’s debt which stood at Rs. 4,776 on the date of the agreement of sale. In view of these findings the learned Judge directed that defendants 3 to 5 who were in possession of the property, should pay to the plaintiff, (Rs. 9,000 minus Rs 4 776), Rs. 4,224, with interest at six Per cent. Per annum from the date of the plaint and retain possession of the property, but in case they failed to pay the amount within two months from the date of the decree, the plaintiff would be entitled to recover the property on payment of Rs. 4,776 to defendants 3 to 5. with interest at six per cent, per annum. Against this decision Second Appeal No 1342 of 1944 was preferred to the High Court by the first defendant claiming a dismissal of the suit, while the plaintiff preferred a memorandum of cross-obiections for an unconditional decree for possession in his favour. The High Court set aside the judgment of the District Judge, dismissed the defendant’s appeal and allowed the cross-objections preferred by the plaintiff. A decree in favour of the plaintiff for possession of the suit property was granted and as regards mesne profits the case was remitted to the trial Court for ascertaining the amount1. This decision was arrived at in view of the Full Bench2 decision in the connected case. A decree in favour of the plaintiff for possession of the suit property was granted and as regards mesne profits the case was remitted to the trial Court for ascertaining the amount1. This decision was arrived at in view of the Full Bench2 decision in the connected case. An argument was raised before the High Court that the transaction of sale should be upheld as a bona fide settlement of a disputed claim. This contention was repelled in view of the finding of fact of the lower appellate Court that the sum of Rs. 2,060 alleged to have been borrowed by the mother for repairing and reclaiming certain unproductive lands, had not in fact been so borrowed and that recital of the amount in the sale deed was introduced in consultation. With the lawyer to make out a case that the borrowing was for a binding purpose. It may be briefly mentioned that as regards the amount of the promissory note of Rs. 883-3-0, dated 17th August, 1934, a suit was filed by the creditor. This suit was defended by Pundarikakshayya on grounds similar to those alleged by him in his plaints in the two connected cases. As the trial Judge found that the transactions were binding on the minor, he decreed the suit with costs, the debt being recoverable from the joint family property of Pundarikakshayya. Pundarikakshayya appealed against the decree in this suit to the District Judge. The learned District Judge in view of his findings already mentioned allowed the appeal and dismissed the suit with costs. This decision was maintained in second appeal by the High Court1. It will be convenient in the first instance to consider whether the Full Bench decision of the High Court2 impugned in Civil Appeal No. XI of 19483 is correct or whether there are any merits in the defendant’s appeal. The appellant’s learned counsel, who argued his case with great ability and fairness, contended that the Full Bench of the High Court of Madras was in error in holding that a de facto guardian had no power to execute a promissory note on behalf of his ward so as to bind his estate. The appellant’s learned counsel, who argued his case with great ability and fairness, contended that the Full Bench of the High Court of Madras was in error in holding that a de facto guardian had no power to execute a promissory note on behalf of his ward so as to bind his estate. He urged that the powers of a de facto manager to borrow money for necessities and for purposes which were binding on the minor’s estate were in no way different from the powers of a natural guardian and that both the natural guardian and the de facto manager of the estate of a minor (or the so called de facto guardian) had power to charge the estate, to sell it, or to incur a simple debt and bind the minor’s estate provided the power was exercised rightly in case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upin it in the particular instance was the only thing to be regarded, and that the touch-stone of the binding character of the loan on the minor’s estate was necessity and not the authority of the person who incurred the debt, provided that person was not an utter stranger. For his contention the learned counsel placed considerable reliance on Hanoomanpersaud Panday v. Mussumat Babbooee Munraj Coonweree4. Particular emphasis was laid on the following passage at pages, 412 and 413 of the report: "Upon the third point, it is to be observed that under the Hindu Law the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the de-jure title. Therefore, had the Ranee intruded into the estate wrongfully and even practised a deception upon the Court of Wards, or the Collector, exercising the powers of a Court of Wards, by putting forth a case of joint proprietorship in order to defeat the claim of a Court of Wards to the wardship, which is the case that Mr. Therefore, had the Ranee intruded into the estate wrongfully and even practised a deception upon the Court of Wards, or the Collector, exercising the powers of a Court of Wards, by putting forth a case of joint proprietorship in order to defeat the claim of a Court of Wards to the wardship, which is the case that Mr. Wigram supposed, it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer. The objection, then to the Ranee’s assumption of proprietorship, in order to get the management into her hands, does not really go to the root of the matter, nor necessarily invalidate the charge; consequently, even had the view which the Sudder Dewanny Adawlut took of the character of the Ranee’s act, as not having been done by her as guardian, been correct, their decision against the charge without futher inquiry would not have been well-founded. It would not have been accordant with the principles of the Hindu Law as declared in Colebrooke, Dig. Vol. 1, p. 302, and in the case of Gopee Chururt Burral v. Mussammat Ishwuree Lukhee Dibia1and as illustrated by the case cited for the appellant in the argument, against the authority of which no opposing decision was cited." In this case a loan had been taken to pay Government land revenue and to save the estate from sequestration. Similarly some other loans had been borrowed on simple bonds and on mortgages for necessary purposes. Though the Rani as the mother of the minor was his legal guardian, their Lordships did not limit their decision to that point but proceeded to observe that even on the assumption that the decision of the Sudder Dewanny Adawlat that the Rani entered into possession of the estate wrongfully, was correct, the case of the creditor could not be defeated without further enquiry into the accounts of the various loans incurred by her. Learned counsel for the appellant forcefully urged that if a de facto guardian can mortgage an estate for purposes of necessity, a fortiori, he can incur a simple debt without charging the estate in a similar situation and for such debts he may execute a bond or a promissory note. Learned counsel for the appellant forcefully urged that if a de facto guardian can mortgage an estate for purposes of necessity, a fortiori, he can incur a simple debt without charging the estate in a similar situation and for such debts he may execute a bond or a promissory note. We were pressed with the argument that in principle or in logic there could be no distinction between the powers of raising secured or unsecured loans by a de facto manager provided a case of emergency was made out. It was also argued that on the findings arrived at by the trial Judge the sale was unassailable as it was made to pay off the liabilities of the minor’s adoptive father kept alive by the natural and the de facto guardians. It was contended that the promissory notes that were renewed by the de facto manager were renewed under circumstances which amounted to necessity, and these renewals were made to avoid the danger of a suit and attachment before judgment. If these contentions of the learned counsel were sustained, then there can be no manner of doubt that the decision of the High Court has to be reversed. For the respondent Mr. Somayya, his learned counsel, in a very careful argument supported the decision of the Full Bench. He contended that Hunoomanpersaud Panday’s case2 did not lay down the proposition that a de facto manager under Hindu law could charge a minor’s estate in case of need, that their Lordships of the Privy Council made certain obiter remarks to meet a contention raised by Mr.Wigram, the counsel appearing in that case, but that the decision of that case was not based on those remarks, but was based upon the finding that the mother was a legal guardian and was thus entitled to mortgage the minor’s property for acts of necessity. It was argued that there was nothing in Hindu law which authorized a de facto guardian who was no better than an officious intermeddler to mortgage or sell a minor’s estate or to incur loans on his behalf and bind the estate and that there was nothing peculiar in a Hindu minor which distinguishes his case from that of minors under other systems of law. In all cases where a minor was left without a proper guardian it was the duty of the King or of the Courts to protect him and the difficulties or hardships experienced by minors under all systems of law and belonging to different races and creeds were the same and that being so, there was no scope for the rule that so far as Hindu Law was concerned, the minor’s interests required to be looked after by kind relations and friends and that when these relations and friends entered into management of the minor’s property they enjoyed the power to bind the minor with their acts. It was contended that under Muhammadan law, Bhuddist law and Christian law, the rule was that a minor’s property could only be dealt with by a person lawfully authorized and the same rule had application under Hindu Law. The obiter remarks in Hunoomanpersaud Panday’s case2 were subjected to some criticism and it was said that these remarks relate to a case of a manager of a joint Hindu family or concern a lawful guardian. They may also be extended to apply to cases of persons having some interest in the property but could not be extended to the case of a de facta guardian who is as the phrase indicates not a guardian in law. It was contended that on logical grounds the rule laid down in that case should not be extended to any transactions except mortgages. Reference was made in this connection to certain remarks in Norman v. Leedham3. On the basis of the Privy Council decision in Waghela Rajsanji v. Shekh Masludin1, it was argued that even a natural guardian could not make a contract which would bind a minor personally and similarly a de facto guardian possessed no such power of executing bonds and promissory notes. Reliance was placed on the following observations made in that case: " there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law In point oi fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. Their Lordships are not aware of any law in which the guardian has such a power nor do they see why it should be so in India, They conceive that it would be a very improper thing to allow the guardian to make convenants in the name of his ward, so as to impose a personal liability upon the ward. It was conceded that on the principles of section 68 of the Indian Contract Act a guardian could borrow on his personal covenant and as the lender can recoup himself from the minor’s estate for necessaries supplied, the guardian can also by the rule of subrogation recover the amount from that estate. Lastly it was urged that on the facts of the two cases the loans on which the conveyances in favour of the defendants were founded were not such as to bind the estate of the minor. In order to judge the validity of the respective contentions of the learned counsel it is necessary to determine the exact scope of the decision of their Lordships in Hanoomanpersaud Panday’s case2 and to discover whether it was based on principles of Hindu jurisprudence or was given on grounds of equity, justice and good conscience. The decision in the case was given in the year 1856 and has since then been discussed and commented upon in a very large number of cases in the High Courts in India. It has been construed as laying down the proposition that a de facto manager of a Hindu minor’s estate can by incurring debts charge his estate and can also dispose of it partially or wholly, provided the necessities of the minor require it. The reported cases may be few, but it can be said without hesitation that in numerous cases, alienations in the nature of mortgages or sales have been upheld on the basis of the above rule. Hypothecation bonds given by a de facto manager have formed the basis of decrees against the minor’s estate and cases can be discovered where moneys lent on foot of account books, bonds, and promissory notes have been decreed against the minor’s estate provided necessity for the borrowing qua the minor was made out and some danger to his estate was averted. In a few cases some learned and eminent Judges have questioned this construction of Hanoomanpersaud Panday’s case2 and have observed that that decision only laid down the rule regarding the powers of natural guardians or of qualified owners with authority, like Hindu widows, managers of joint Hindu families, or persons in charge of Hindu mutts or religious institutions and that the decision could be said to have application to cases where a person having some interest in the property entered into management of the whole of the estate and effected alienations but that it could not be said to have laid down that a person who without any title entered into management of the minor’s estate could incur loans and charge his estate with debts incurred for necessity. Reference in this connection may be made to Limbaji Ravji v. Rahi3, where it was held by Sir Normal Macleod, C.J. and Crump, J. that a Hindu step-mother who was acting as de facto manager of a minor had no power to effect a mortgage or a sale of the ward’s property. This decision was commented upon in Harilal Ranchhod v. Gordhan Keshav.4 The learned Judges held that the person who acted in that case as guardian had never been a de facto manager of the estate and had never assumed management of the property in the real meaning of the term. In these circumstances, they thought that the matter of the correctness of the decision in Limbaji Ravji v. Rahi3 need not be referred to a Full Bench. Eventually, however, the question of the correctness of the decision in Limbaji Ravji v. Rahi3 was referred to a Full Bench in Tulsidas v. Vaghela Raisinji5 by Baker, J. The point referred was whether under Hindu law a de facto guardian of a minor could validly sell the property of the minor to a third person for legal necessity. The Full Bench was presided over by Beaumont, C.J. and Patkar and Barlee, JJ. The learned Chief Justice took the view that the decision in Limbaji Ravji v. Rahi1 was correct and that a de facto guardian of a minor under Hindu law could not validly sell the property of the minor to a third person even for legal necessity. The Full Bench was presided over by Beaumont, C.J. and Patkar and Barlee, JJ. The learned Chief Justice took the view that the decision in Limbaji Ravji v. Rahi1 was correct and that a de facto guardian of a minor under Hindu law could not validly sell the property of the minor to a third person even for legal necessity. His Lordship arrived at the conclusion on the following grounds: “So that the position on the authority appears to me to be that in the Hindu law texts there is nothing on the subject which is really relevant. The only alleged authority of the Privy Council dealing with the question under Hindu law is not really an authority on the point. The Courts of Calcutta and Madras have both come to the conclusion that a de facto guardian of a minor has the power claimed and in so doing they considered that they were following the decision of the Privy Council. This High Court has come to a different conclusion, but, it seems without having had the advantage of a full argument and without considering the views of the other High Courts. In the present case we have had the advantage of excellent arguments on both sides and we have to determine which view is the right one. In my opinion we are not justified in overruling the decision of our own Court unless we are satisfied that it was wrong in principle or was opposed to authority which was binding on this Court. Dealing with the matter as one of principle I apprehend that if a person claims the right to sell the property of another, he must establish his title so to do. In many cases the right to deal with the property of another may arise from the legal relationship between the parties. But it is certainly strange to suggest that such a power can be acquired by relationship which has no legal sanction. A so-called guardian de facto is not a guardian at all. He is merely a person who has assumed without authority to act as guardian, and it is a strange thing to hold that by such assumption he has acquired the right to deal with the minor’s immoveable property. A so-called guardian de facto is not a guardian at all. He is merely a person who has assumed without authority to act as guardian, and it is a strange thing to hold that by such assumption he has acquired the right to deal with the minor’s immoveable property. That view of the matter was very clearly expressed by Lord Robson in delivering the opinion of the Privy Council in Mata Din v. Ahmad Ali2.....In that case their Lordships were dealing with the question under the Muhammadan law and it has been held since in Imambandi v. Mutsaddi3 that a de facto guardian cannot, under Muhammadan law sell an infant’s property. But the passage to which I have referred seems to me to state a general proposition of law which is as applicable to Hindu law as to any other systems.” Reliance was placed on certain remarks of Kumaraswami Sastri, J., in Ramaswami v. Kasinatha4, to the following effect: “Were the matter res Integra I would be disposed to hold that the observations of Lord Robson above quoted would be applicable equally to cases where the parties are Hindus as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person who without authority assumes the office of guardianship any special powers.” The observations of Lord Robson in Mata Din v. Ahmad Ali2 to which reference was made are in the following terms: “It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent and as such were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary to his interests. It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a de facto guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor’s property, but he cannot thereby clothe himself with legal power to sell it.” The learned Chief Justice proceeded to observe: “Mr. Divatia however says that under Hindu law a different rule should prevail. He says that in Hindu law the touchstone is necessity, and that once it is established that it is necessary in the interests of an infant that his property should be sold, then anybody who is in fact managing the property is authorized to sell it. Divatia however says that under Hindu law a different rule should prevail. He says that in Hindu law the touchstone is necessity, and that once it is established that it is necessary in the interests of an infant that his property should be sold, then anybody who is in fact managing the property is authorized to sell it. He is. I think, reallys seeking to draw an analogy between the position of a guardian of an infant and that of a manager of a Hindu joint family. The conception of a Hindu joint family under which minors become interested at birth almost necessarily involves the idea of a manager with power to dispose of the property in a proper case. But the position of such a manager seems to me to be essentially different to that of a guardian of a minor. Where there is no natural guardian available, the Court can appoint any person to be the guardian of a minor and it is to be observed that if the de facto guardian in the present case had been appointed to act by the Court she would have had no power to make the sale in question without an order of the Court. It is indeed a strange conclusion that a power should be annexed to an office held without authority which would not be so annexed if the office were held under legal sanction. There is obvious risk of abuse in allowing unauthorized persons to deal with the property of minors.” Patkar, J., agreed with the observations of the Chief Justice to the extent that there is no clear Hindu law text to enable the de facto guardian to alienate property. He proceeded to observe thus: " The texts which have been referred to in the argument before us by Mr. Divatia are Mitakshara, Ch. I, section 1, verses 27, 28 and 29 and Colebrooke’s Digest of Hindu law, Vol. 1, pages 203 and 204. The texts in the Mitakshara have been construed by Banerjee, J., in Mohammund Mondul v. Nafur Mondul1 as authorising alienation by a de facto manager of the property of the minor. The texts in Colebrooke’s Digest were relied on by Nanabhai Haridas, J., in Bai Amrit v. Bai Manik2 as supporting alienation by the de facto manager. The texts in the Mitakshara have been construed by Banerjee, J., in Mohammund Mondul v. Nafur Mondul1 as authorising alienation by a de facto manager of the property of the minor. The texts in Colebrooke’s Digest were relied on by Nanabhai Haridas, J., in Bai Amrit v. Bai Manik2 as supporting alienation by the de facto manager. There is nothing explicit in those texts which would invest a de facto guardian of a minor with the power to alienate the minor’s property. I am however impressed by the view taken by Lord Robson in Mata Din v. Ahmad3. Those decisions of the Privy Council deal with Muhammadan law and are based on explicit and clear texts of Muhammadan law. With regard to Hindu law, I feel difficulty in accepting the view propounded in the above two judgments of the Privy Council by reason of the observations in the case of Hanoomanpersaud Panday v. Mussumat Babooee Munraj Coonweree4. The principles enunciated in the judgment of the Privy Council is embodied in section 38 of the Transfer of Property Act. The decision in Hanoomanpersaud Panday’s case4 has been treated in subsequent decisions of the Privy Council as relating to the powers of a manager for an infant heir, and the principles laid down therein have been extended to the alienations by the manager of a joint family, Sahu Ramchandra v. Bhup Singh5 to the alianation by a widow in possesion of the estate not as a full owner, Baboo Kameshwar Prasad v. Run Bahadoor Singh6 and to the authority of a shebait of an idol’s estate held to be analogous to that of a manager for an infant heir, Prosunno Kumari Debia v. Gulab Chand Baboo7, Konwar Doorganath Ray v. Ram Chandra Sen8, Vidya Varuthi Thirtha v. Balusami Ayyar9. The judgment has also been construed in the various High Courts as laying down that under Hindu law an alienation by a de facto guardian is not necessarily void and is valid if supported by a justifying necessity....The case, therefore, stands in my opinion as follows. On general principles I agree that a de facto guardian should not have the power to alienate the property of a minor. On general principles I agree that a de facto guardian should not have the power to alienate the property of a minor. I also agree that there will be inconvenience in the matter of sales or conveyances of property belonging to the minor and that it is desirable that before a de facto guardian purports to alienate property on behalf of a minor, he should get himself appointed as guardian under the Guardians and Wards Act. I have not to consider what the law on this point should be, but I am bound to ascertain the Hindu law as laid down by the ancient texts, and in the absence of texts as laid down by the decisions of the Privy Council. I think that the decision of the Privy Council in Hanoomanpersaud Panday’s case4, has been considered consistently ever since that decision as supporting an alienation by a de facto guardian in case of necessity. I have referred to the decisions of the Calcutta High Court and the Madras High Court accepting that view. The same view prevails in this Court till the decision, in Limbaji Ravji v. Rahi10. In Ramswami v. Kasinatha11, though Kumaraswami Sastri, J., observed that he would be disposed to hold that the observations of Lord Robson would be applicable equally to cases where the parties were Hindus as there was nothing peculiar to the Hindu system of jurisprudence which conferred on a person who without authority assumed the office of guardianship any special powers, yet he found that he was bound by the long series of decisions to the effect that in cases governed by Hindu law an alienation by a de facto guardian would be binding, if for necessity. On these grounds I am not prepared to hold an alienation by a de facto guardian, if for necessity, is necessarily void. I regret my inability to agree with my Lord the Chief Justice on this point, but I feel bound by the observations of the Privy Council in Hanoomanpersaud Panday’s case4 as interpreted by the later decisions of the Privy Council and the decisions of the High Courts in India. The conclusion reached by me is consistent with the views of Mr. The conclusion reached by me is consistent with the views of Mr. Mayne and Sir Dinshaw Mulla in their treatises on Hindu law." The third Judge, Barlee, J., expressed agreement with Patkar, J., and said that: " We must go back to the rule of Hunoomanpersaud Panday’s case4, a case which was disturbed for the first time by this Court by the decision in Limbaji Ravji v. Rahi10, The point decided in Hunoomanpersaud Panday’s case4 was that an alienation by a mother, who was in charge of the property of an infant son was binding on that son after he came of age. But their Lordships of the Privy Council treated the lady as if she was merely a de facto manager though in fact according to Hindu law, she was the natural guardian and de jure manager. Strictly speaking, this decision might be termed obiter so far as the rights of a de facto manager are concerned. But their Lordships evidently did not look upon it as obiter and it has never been considered in that light from that time.....This being the state of affairs, I do not think that we are justified in perpetuating the view adopted in Limbaji Ravji v. Rahi1. It is a very recent decision whereas the rule in Hunoomanpersaud Panday’s case2 has been the law throughout India for sixty-eight or sixty-nine years, and is still the law in all other provinces of India.“ The Full Bench by a majority on the rule of stare decisis held that a de facto guardian had power to alienate a minor’s property in case of justifying necessity. They expressed the view that the decision could not be supported on any text of Hindu law or on general principles. In Madras also the decision in Hunoomanpersaud Panday’s case2 was to a certain extent questioned in Seetharamanna v. Appiah3 by Odgers, J. The learned Judge observed as follows: ” It has been argued at length for the respondents that a de facto guardian is unrecognized in the Hindu law. In Madras also the decision in Hunoomanpersaud Panday’s case2 was to a certain extent questioned in Seetharamanna v. Appiah3 by Odgers, J. The learned Judge observed as follows: ” It has been argued at length for the respondents that a de facto guardian is unrecognized in the Hindu law. It may be at once said that, if there is such a recognition, I am satisfied that the recognition is more or less modern, and possibly to some extent, the recognition, if it is legally recognized at all, has come about by necessity.“ Viswanatha Sastri, J., however made the following remarks: ” It was argued before us that under the Hindu law, the father, the mother, and failing them the king, were the guardians of an infant; that no other relation was the guardian; that de facto guardians were not better than intermeddlers; and that alienations by de facto guardians were void as was laid down by the Privy Council in Imambandi v. Mutsaddi4. That case related to a Muhammadan minor; their Lordships based their decision on Muhammadan law texts; and so far as I am able to see, I do not find reference in the judgment to any decided cases concerning Hindu minor. Alienations by de facto guardians of Hindu minors have come up very frequently before Courts, and our attention has not been directed to any decided case in which it has been held that such an alienation was per se void, apart from any question as to whether it was for legal necessity or not .... I am clearly of opinion that the right of a de facto guardian to deal with the property of a Hindu minor has been recognized by our Courts ever since the decision of the Privy Council in Hunoomanpersaud Panday’s case2 provided the alienation was for necessity.” Recently in Patna the scope of the rule laid down in Hunoomanpersaud Panday’s case2 has been limited and it has been observed that the decision in that case applies where a person in management of the estate has himself an interest in the property alienated and that the case is no authority for the view that a de facto manager was something more than an intermeddler to alienate the property of a minor, of Nrishingha v. Ashutosh5. Manohar Lall, J., made the following observations: ” Sir Sultan Ahmed then relied upon the case in Tulsidas v. Raisingji Fulabhai6 in support of his contention for the view that there is something peculiar to the Hindu system of jurisprudence which confers special power on a person who without authority assumes the office of guardianship. The decision of the Full Bench was a dissenting decision where the learned Chief Justice took a contrary view. The other learned Judges have made observations which appear to be in support of the contentions of the appellant. The learned Judges were impressed by the observations of the Privy Council in Hunoomanpersaud Panday v. Mussummat Babooee Munraj Coonweree2 . I propose to show that the observations of the Privy Council do not mean what has been stated by the learned Judges to imply. In the case of Hunoomanpersaud Panday2, the Privy Council definitely found ‘that the acts of the Rani cannot be reasonably viewed otherwise than as acts done on behalf of another whatever description she gave to herself or others gave to her; that she must be viewed as a manager, inaccurately and erroneously described as ‘proprietor’ or ‘heir’ and it was found that the case that the plaint makes is not that she intruded upon him (the complainant) and assumed, proprietorship; the plaint itself says she had possession as guardian, that is, as managing in that character.‘ It must not be forgotten that their Lordships considered: ‘that the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate or for the benefit of the estate, is not affected by the want of union of the de facto with the dejure title.’ In other words if that case be carefully examined, it will be found that the charge was created by a person who was de facto guardian in possession with an apparent title either in himself or as the manager of another and in that capacity had created a charge on the estate honestly and in the interest of that estate. [It is needless to observe that the Rani was the mother of the complainant (plaintiff) in that case.] I take the decision of the Privy Council to mean no more than what it says, namely, that the alienation validly made by the manager in actual possession of the estate for purposes binding on the estate is valid. The learned Judges in the Bombay case under consideration also relied upon the following observations of Mr. Mayne in his Hindu Law, Edn. 9, page 297: ‘Where the act is done by a person who is not his guardian but who is the manager of the estate in which he has an interest, he will equally be bound, if in the circumstances, the step taken was necessary, proper or prudent.‘ It is noteworthy that the learned author uses the words ‘manager of the estate in which he has an interest.‘ The observation of Sir Dinshaw Mulla in his Hindu Law, Edn. 7, page 568, were also quoted: A de facto guardian is one who manages the minor’s estate, such person mot being a natural guardian nor a guardian appointed by the Court, and that a de facto guardian has the same power of alienating the property of the minor as a natural guardian. Attention is also directed to the observations of Kumaraswami Sastri, J., in Ramaswami v. Kasinatha1. * * * * * * In my opinion if the argument of the appellant was accepted the Guardians and Wards Act would be considered to be abrogated. An honest money-lender or a person who honestly takes transfer of a minor’s estate should be careful to see that the person who is making the transfer in question is either a legal and natural guardian or a guardian appointed by the Court or is a person who is actually managing the estate for the minor in which he has an interest. In the majority of cases there will be no difficulty to hold that such a manager is a de facto guardian. But, I strongly dissent from the view that wholly unauthorised persons should be given the powers to deal with the estate of a minor for his supposed benefit. I would hold that the observations of Lord Robson in Mata Din v. Ahmed Ali2, are of general application, applicable to all subjects of His Majesty, be they Hindus, Muhammadans or Christians. But, I strongly dissent from the view that wholly unauthorised persons should be given the powers to deal with the estate of a minor for his supposed benefit. I would hold that the observations of Lord Robson in Mata Din v. Ahmed Ali2, are of general application, applicable to all subjects of His Majesty, be they Hindus, Muhammadans or Christians. In the present case, even if the view of the majority Judges in the Bombay High Court in the case which is considered is accepted to be good law, it does not help the appellant in the least. It is nowhere suggested in the evidence that defendant 3 was the manager of the estate of the minor. The minor, that is, defendant 4 had no estate to manage. She was never in possession of any estate." The decision above cited brings out very clearly the view of those learned Judges who consider that the rule laid down in Hunoomanpersaud Panday’s case3 should be limited to cases of natural guardians or to persons who have some kind of authority whether as joint owners, trustees or otherwise on the property itself but it does not apply to cases of relations or friends who assume management of a minor’s estate in the absence of natural guardians but who have no interest themselves in the property. If this view of Hanoomanpersaud Panday’s case3 is accepted as correct, then it is obvious that the alienations in these two appeals cannot be upheld because they were made by the natural father of the plaintiff who was not his legal guardian and who himself had no interest of any kind in the alienated property. It seems to me however that this limited view of Hunoomanpersaud Panday’s case3 has been expressed only in a few instances. That decision has been accepted in a large number of cases in all High Courts in India as laying down the rule that a de facto guardian of a Hindu minor can alienate his estate in cases of necessity. In the Bombay High Court in Bai Amrit v. Bai Manik4, Nanabhai Haridas, J., observed as follows: "Bai Manik at the time of the sales above mentioned was the only adult member of the family, and in management of the family property as such. In the Bombay High Court in Bai Amrit v. Bai Manik4, Nanabhai Haridas, J., observed as follows: "Bai Manik at the time of the sales above mentioned was the only adult member of the family, and in management of the family property as such. She was, moreover, by Hindu law, the guardian of her late minor son and of her minor daughter-in-law, Bai Amrit. and competent in that capacity to deal with the family property for the benefit of the estate. It is true that she does not appear to have been appointed manager by the civil court under Act XX of 1864. But seeing that she was manager de facto of the family, her sales in that character of portions of the family property for valuable consideration, which, when obtained by her, was actually applied to meeting family necessities, cannot, we think, be questioned. The Hindu Law enables even a slave, a fortiori therefore, a perfon in Bai Manik’s position, to bind the family by contracts made under the circumstances found in this case. We must, therefore, disallow that portion of the plaintiff’s claim which relates to the property in possession of the co-defendants as purchasers." Reference was made to Mitakshara, Chapter I, verses 27 to 29, and Colebrooke’s Digest, Vol. I, texts 191 to 193. This view now stands affirmed by the Full Bench judgment in Tulsidas v Waghela Raisingji1. In Madras in Arunachala Reddi v. Chidambara Reddi2 of the year 1902 the matter was discussed by Sir Arnold White, C.J. Later in Seetharamanna v. Appiah3, Hunoomanpersaud Panday’s case4 was followed. It was conceded at the Bar that that was the view of the Madras High Court so far as judicial decisions were concerned. In Calcutta the earliest reported case is in Ganga Pershad v. Phool Singh5 of the year 1868. The rule in Hunoomanpersaud Panday’s case4was applied to an alienation by a de facto manager of his brother’s estate. In Mohanun Mondul v. Nafur Mondul6, MacLean, C.J. and Banerjee, J., held that de facto guardian could alienate the property of his ward and the rule was applied to the case of sales. Reference was made to Mitakshara, Chapter I, paragraphs 28 and 29. In Mohanun Mondul v. Nafur Mondul6, MacLean, C.J. and Banerjee, J., held that de facto guardian could alienate the property of his ward and the rule was applied to the case of sales. Reference was made to Mitakshara, Chapter I, paragraphs 28 and 29. Sir Ashutosh Mookherjee and Newbould, JJ., in Krishna v. Ratan7held that a de facto guardian and manager of the property of a minor could effect a valid conveyance of his property and create a valid charge on it if it was one that a prudent owner will make for the benefit of the estate. At page 434 the following remarks occur: “This view has been adopted and applied by the Indian Courts ever since the decision of the Judicial Committee was pronounced on the 26th July, 1856. In the decision of a Full Bench of the Sudder Court in the case of Goorooprosaud Jena v. Mudden Mohan Soor8, where the judgment was pronounced on the nth December, 1856, apparently before the decision of the Judicial Committee reached this country, the same view was independently taken, and it was held that the benefit of the minor creating necessity was the test by which the legality of the transaction must be tried; the rule is that a party filling a fiduciary character, like that of a guardian, is authorized to perform any act which is manifestly for the infant’s benefit. A similar view was adopted in Mohanun Mondul v. Nafur Mondul6, where MacLean, C.J. and Banerjee, J., held that a de facto manager of an infant’s estate has, in case of necessity or for the benefit of the minor, power to sell his property. In that case the Court further declined to accept the contention that the rule laid down by the Judicial Committee was restricted to cases of mortgage or other forms of partial alienation and was not intended to apply to cases of sale.” Subsequent decisions in that Court have not doubted the above proposition. In the Allahabad High Court the view taken in earlier cases was that even in the case of Muhammadans a de facto guardian had power to make alienations. This view was set aside in Mata Din v. Ahmad Ali9. In the Allahabad High Court the view taken in earlier cases was that even in the case of Muhammadans a de facto guardian had power to make alienations. This view was set aside in Mata Din v. Ahmad Ali9. In Adhar Chandra v. Kirtibash Bairagee10, it was held that the powers of a de facto guardian are the same as that of a natural guardian and it was conceded by such an eminent counsel as Dr. Rash Behary Ghosh that that was so and that a de facto guardian could alienate a minor’s property. In the Lahore High Court the same view has been taken. Reference may be made to Kundan Lal v. Beni Pershad11 and Piare Lal v. Lajja Ram12. In Nakhelal v. Rajeshwari Kumari13, Tulsidas v. Waghela Raisingji1, was considered and followed, though as I have already pointed out that in Nrishingha v. Ashutosh14, Manohar Lall, J., construed this decision differently. The case of Hunoomanpersaud Panday4 has been followed in Nagpur and other Courts in India. Particularly reference may be made to a Full Bench decision of the Nagpur Court reported in Cecil Cole v. Nanalal Moraji Dave15, which expressed an opinion contrary to the one expressed by Beaumont, C.J. and Manohar Lall, J. and Kumaraswami Sastri, J. In Kesho v. Jagannath1, at page 123 of the report, the following observations occur: " In each of these three cases the person who actually made the alienation purported to act as guardian, and was treated in the judgment as the guadian, de facto but not de jure. The decisions rested on the view that there is a difference between Hindu law and Muhammadan law in respect of the right to dispose of the property of a minor held by a person who is in fact acting as the guardian of the minor but without any right to do so; that according to the Hindu law, such a guardian even though self constituted can alienate the property of the minor whom he has taken under his protection, provided only that the alienation is for the minor’s benefit. This appears to be a wrong statement of a correct principle, but it was the position taken before the Bench in this case on behalf of the appellants. This appears to be a wrong statement of a correct principle, but it was the position taken before the Bench in this case on behalf of the appellants. The reasons urged to support it are fully set out in the judgment of Kinkhede, A.J.C., in the last of the cases already mentioned in these words: ‘ In my opinion, in an alienation by a de facto guardian of a Hindu minor has not the same effect as an alienation by a de facto guardian of a Muhammadan minor. It has been laid down in Hunoomanpersaud Panday v. Babooee Munraj Coonweree2 that ‘under the Hindu Law the right of a bona fide incumbrancer, who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and dejure manager) affected by the want of union of the de facto with the dejure title’. This view has been consistently accepted as a correct exposition of Hindu law in a series of cases of the several High Courts, of. Bai Amrit v. Bai Manik3, Mohanun Mondul v. Nafur Mondul4, Thayammal v. Kuppunna Koundan5, Jago v. Oodal6 and Somwarpuri v. Gopal Singh7, decided by Stanyon, A.J.C., on 28th April, 1915 and quoted with approval in Vithu v. Devidas8 by Mittra, A.J.C. Under Muhammadan law de facto guardian has no recognized position and is no better than an officious intermeddler who as pointed out by their Lordships of the Privy Council in Mala Din v. Ahmad Ali9, may by his de facto guardianship assume important responsibilities in relation to the minor’s property but he cannot thereby clothe himself with legal power to sell it’. In the aforesaid case of Mata Din v. Ahmad Ali9, the point whether a sale by a de facto guardian if made of necessity or for payment of an ancestral debt affecting the minor’s property and if beneficial to the minor was altogether void or voidable, was not decided by their Lordships of the Privy Council nor were the observations of their Lordships such as could apply to the case of the alienation by a de facto guardian under Hindu law. There is a fundamental distinction between the guardian under the two systems of jurisprudence. There is a fundamental distinction between the guardian under the two systems of jurisprudence. The actual structure of the Hindu society with its joint family system is a thing unknown to the Muhammadan society. Under the Muhammadan law a de facto guardian has no recognised position while the Hindu law gives to him a position identical to that acknowledged in a dejure guardian. In this respect as pointed out by Dr. Gour in his Hindu Code, page 446 2nd Edition, ‘the Muhammadan law offers no analogy but rather presents a contrast... The one enquires who made the alienation, the other why it was made.... This distinction between the two systems appears to have been ignored in a case in which an alienation by a Hindu de facto guardian was treated as ipso facto void, Hussen v. Rajaram10. That this is so is clearly pointed out by Stanyon, A.J.C, in Somwarpuri v. Gopal Singh7, referred to above. I, therefore, respectfully record my dissent from the view taken in Hussen v. Rajaram10 and prefer to follow the view taken in Somwarpuri v. Gopal Singh7.’ The ‘structure of Hindu society, with its joint family system’ certainly does differ from that of any other society in the world but that does not give any person the right to take charge of the property of any minor he may come across, just because he happens to be a Hindu, whether they are nearly or distantly related of not related at all, and ‘thereby clothe himself with power to sell it.‘ It is, however, correct to say that it is the existence of the joint family system among Hindus that makes all the alienations under consideration valid though they would be invalid if the minors had not been Hindus, because they were made not by their guardians but by the managers of their families. The fundamental mistake made in respect of Hunoomanpersaud Panday’s case2 is in assuming that it defines the powers of a guardian of a Hindu minor. It deals throughout with the powers of a manager, and the word guardian occurs in their Lordships’ judgment only four times, twice in quotations from the judgment of the Sadar Diwani Adalat, once in a quotation from the plaint and once in their Lordships’ summing up of their conclusions. It deals throughout with the powers of a manager, and the word guardian occurs in their Lordships’ judgment only four times, twice in quotations from the judgment of the Sadar Diwani Adalat, once in a quotation from the plaint and once in their Lordships’ summing up of their conclusions. In the last place the word may have been used because it had been used although the case in the Courts in India, or, if I may suggest it without disrespect, by a slip. If there is any statement of the rule of Hindu law as to who is entitled of right to be the manager of a joint Hindu family, I have been unable to find it, but I take it that any adult member of the family, male or female, is so entitled. If that is correct the person who actually executed the transfer in the present case, and indeed, in each of the five other cases mentioned except that of 1914 decided by Stanyon, A.J.C., was the manager of the family, de jure as well as de facto. If, as seems to have been assumed only for the purposes of the arguments in Hunoomanpersaud Panday’s case2 a female cannot as of right be such a manager, even the mother of the only other member of the family who is a minor, then in this, as in all the other cases, the transfer was valid because it was made by the person who was the actual manager at the time, whether that person had a right to be manager or not, and it was for the benefit of the estate and necessary for its preservation. The answer I would give to the reference is, therefore, that the sale in this case by the Hindu widow who was managing the estate of her minor son and step-son of a part of the immoveable property belonging to the estate for necessary purposes is valid and binding on her step-son." It will be apparent from the examination of the decisions that it is not possible to reconcile all of them and still less the reasons on which they have been based. The matter has to be examined on principles of Hindu jurisprudence and on the true scope of the decision in Hunoomanpersaud Panday’s case1. The matter has to be examined on principles of Hindu jurisprudence and on the true scope of the decision in Hunoomanpersaud Panday’s case1. For this purpose it is necessary to examine the original authorities on which the alleged obiter observations in Hunoomanpersaud Panday’s case1, were based and to see whether a de facto manager of an estate who has assumed management of the estate of a minor has legal authority to bind it for necessity. It has also to be considered whether in respect of debts the Hindu system is different from the other systems of law. Reference was made during arguments in Hunoomanpersaud Panday’s case1, to Mitakshara, Chapter I, section 1, paragraphs 27 to 30. These paragraphs are as follows: " 27. Therefore it is a settled point, that property in the paternal or ancestral estate is by birth, although the father have independent power in the disposal of effects other than immoveables, for indispensable acts of duty and for purposes prescribed by text of law, as gifts through affection, support of the family, relief from distress, and so forth; but he is subject to the control of his sons and the rest, in regard to the immoveable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, ‘though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift of sale should, therefore, be made’. 28. An exception to it follows: ‘Even a single individual may conclude a donation, mortgage, or sale, of immoveable property, during a season of distress, for the sake of the family, and especially for pious purposes.’ 29. The meaning of that text is this: ‘while the sons and grandsons are minors, and incapable of giving their consent to a gift and the like; or while brothers are so and continue unseparated; even one person, who is capable, may conclude a gift, hypothecation, or sale, of immoveable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable.’ 30. The following passage: ‘Separated kinsmen, as those who are unseparated, are equal in respect of immoveables; for one has not power over the whole, to make a gift, sale or mortgage’: must be thus interpreted: ‘among unseparated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common ‘: but, among separated kindred, the consent of all tends to the facility of the transaction, by obviating any future doubt, whether they be separate or united; it is not required on account of any want of sufficient power, in the single owner; and the transaction is consequently valid even without the consent of separated kinsmen." These quotations from Mitakshara are authority for the proposition that under the Hindu system even persons having no lawful authority can effect sale and mortgages and gifts of property belonging to others in certain emergent situations. This kind of power is wholly unknown in other systems of jurisprudence. Reference was made in the Privy Council decision to Colebrook’s Digest of Hindu Law, Vol. I, verses 189 to 193. Verse 189 is a text of Brihaspati to the following effect: " A house-keeper shall discharge a debt contracted by his uncle, brother, son, wife, servant, pupil, or dependents, for the support of the family during his absence." It is here implied, that a debt contracted even by others for the support of the family, must be discharged by the house-keeper. Verse 190 is a text of Manu and runs thus: " Should even a slave make a contract in the name of his absent master for the behoof of the family, that master, whether in his own country or abroad, shall not rescind it." Verse 191 is a text of Narada to the following effect: " Whatever debt has been contracted for the use of the family by a pupil, an apprentice, a slave, a wife, or an agent, must be paid by the head of the family." Verse 192 is a text of Vishnu to the following effect: "A debt of which payment has been previously promised or which was contracted by any person for the behoof of the family, must be paid by the house-keeper. Verse 193 is a text of Catyayana to the following effect: " What has been borrowed for the benefit of the family, or during distress, while the principal was disabled, seized by the king, or afflicted with disease, or in consequence of a foreign invasion. 2. Or for the nuptials of his daughter, or for funeral rites; all such debts contracted by one of the family, must be discharged by the chief of that family." Bhrigu has approved of the interpretation of this text as meaning that a debt contracted by a son, a slave, and the rest, even without the assent of the absent principal, for the maintenance of his family, that absent principal must dicharge. Verses 194 is a text of Narada to the following effect: " A father must equally pay the debt of his son contracted either by his own appointment, or for the support of his family, or in a time of distress." It is clear from these texts that a debt that has been borrowed by a wholly unauthorised person, but who is connected with the family and interested in its welfare in circumstances of distress and calamity or for emergencies or for maintenance of family or marriage, is binding on the principal, when that principal is a disabled person or is absent abroad or is in prison. These texts, though they are in conformity with the rule laid down in section 68 of the Indian Contract Act, have a wider scope than enacted in the section itself. The principal becomes liable for the debts contracted by a number of unauthorised persons. Even the father is liable to pay his sons’ debt if incurred for the maintenance of the family. The Muhammadan law and other systems of law to which reference was made by the appellant’s learned counsel do not warrant or justify payment of debts incurred by unauthorized persons. Reference was also made by their Lordships of the Privy Council to the case of Gopee Churun Burral v. Massummaut Ishwuree Lukhee Dibia1. The Muhammadan law and other systems of law to which reference was made by the appellant’s learned counsel do not warrant or justify payment of debts incurred by unauthorized persons. Reference was also made by their Lordships of the Privy Council to the case of Gopee Churun Burral v. Massummaut Ishwuree Lukhee Dibia1. In this case it was held that money having been borrowed to discharge arrears of Government revenue by a person erroneously registered as proprietor of an estate, the rightful proprietor on coming into possession was liable for the debt as this was in conformity with Hindu law Opinion of the Pundits was taken and they were of the opinion that Hindu law justified the payment of a debt by the rightful proprietor, though a wholly unauthorized person had incurred it to protect the estate. Their Lordships of the Privy Council by relying on this decision affirmed the view that a person totally unauthorized but in management of the estate could incur debts which were binding on the real proprietor provided the debts were incurred for the protection of the estate. Reliance was also placed by their Lordships on the decision in Rajah Sahibdeen Khan v. Brij Raj Singh2. In that case a surberakar in management of certain property alleged to belong to a minor, contracted a loan in order to pay off debts originally incurred on conditional sale of such property by (A), a former proprietor. On the suit of B claiming to inherit from A, a decree was passed in his favour, and against the rights of the minor. The loan was incurred to pay off the decree by the surberakar. The minor was held liable for the repayment of the loan, it having been satisfactorily proved that the debt was incurred by the manager entirely for the benefit of the property. These cases support the view that even an unauthorized person in management of the estate can incur a debt for the protection of the estate. As pointed out in the Nagpur Full Bench decision, under the Hindu system of jurisprudence it is the necessity of the loan and the pressure on the estate that are the touchstones on which its validity and binding character on the minor’s estate are judged, while in other systems of law its validity and binding character on the minor depends on the authority of the person incurring it. In Macnaghten’s Hindu Law at page 289, it has been said: “Any bond which a mother, having contracted a debt for the maintenance of her minor son, may have executed in the name of such minor son in favour of the creditor, is valid and binding, according to the texts of Vrihaspati and other sages, cited in the Vivadaratnacara, Vivadachinta-mani, Dayatatwa, and other authorities.” An authority in support of the view is that: “a debt contracted before partition by an uncle, or a brother, or a mother, for the support of the family, all the parceners or joint tenants shall discharge.” “A house-keeper shall discharge a debt contracted by his uncle, brother, son, wife, servant, pupil or dependents for the support of the family during his absence.” It seems to me therefore that the construction placed on Hunoomanpersaud Panday’s case1, by Beaumont, C.J., in Bombay, by Manoharlall, J., in Patna and by Kumara-swami Sastri, J., in Madras, in the cases above cited is based on an incomplete appreciation of that judgment and of the Hindu system of jurisprudence. Full significance of Hindu law texts on the subject of debts does not seem to have been realised and the learned judges were swayed by their own notions of that law in the light of other systems of jurisprudence. The decision in Hunoomanpersaud Panday’s case1is in accord with the spirit of Hindu jurisprudence qua payment of debts incurred in certain emergent situations or in regard to alienations of immoveable property effected in similar circumstances. The joint family system, the limited powers conferred on a widow and on a Mahant are peculiarities of the Hindu system of jurisprudence. A deduction from these analogies is that a person not having full powers of disposition and hence not being fully authorized can in certain circumstances transfer property and confer a title absolute and indefeasible on the purchaser though he himself does not possess that title. The pious obligation theory of Hindu law under which a son is bound to pay the debts of his father is another instance in point. The pious obligation theory of Hindu law under which a son is bound to pay the debts of his father is another instance in point. So far as I am able to see, Hindu jurisprudence is based on principles of ethics and morality and whatever money has been taken or an act has been done which has benefited the real owner of the estate, then that loan or act is not repudiated merely on the technical ground of want of authority in the person taking the loan or doing the act. The principle is that if the estate of a person, whether a minor or absentee, or a joint proprietor, has been benefited by the act of a person who does not hold proper authority but who is in management of the estate then that act must be respected by the true owner and not repudiated merely on the ground of want of authority. In my judgment therefore the rule laid down in Hunoomanpersaud Panday’s case1 regarding the powers of a de facto manager of a minor’s estate is based on Hindu system of jurisprudence and in this matter is different from Muhammadan law and other systems of law. Moreover this decision is now unquestionable even on the doctrine of stare decisis. As regards the scope of the rule, I have no manner of doubt that it has application to cases of relations and friends, who assume management of the property of a minor and who have some connection with the family and does not apply to utter strangers and intruders. Their acts of necessity performed to safeguard the minor’s estate are binding on the minor’s estate. It is not possible to hold as held by Manoharlall, J., that in Hunoomanpersaud Panday’s case1, the decision was based on the ground that the mother had interest in the property charged. The mother in the case had no proprietary rights in the property charged and the obiter observations quoted above were not based on the ground that she was the natural guardian of the minor. These observations were made to meet an argument addressed by Mr. Wigraro in view of the finding of the Sudder Dewany Adawlat to the effect that the mother was unlawfully in possession of the minor’s estate. These observations were made to meet an argument addressed by Mr. Wigraro in view of the finding of the Sudder Dewany Adawlat to the effect that the mother was unlawfully in possession of the minor’s estate. It may also be noticed that though the case related to the validity of a charge created by the mother, yet an enquiry was ordered even qua the validity of unsecured debts. The total charge had been effected in the sum of Rs. 15,000. This amount comprised, inter alia, three debts in respect of simple money bonds. No distinction was raised in the Privy Council decision between secured and unsecured loans. The validity of the debts depended on the necessities of the minor’s estate. The texts cited from page Mitakshara and from Colebrooke’s Digest relate to cases of simple loans. From page 424 of the report in Hunoomanpersaud Panday’s case1, the following passage may appositely be cited for this view: " It is obvious that money to be secured on any estate is likely to be obtained on easier term than a loan which rests on mere personal security; and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management; the purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application. Their Lordhisps do not think that a bona fide creditor should suffer when he has acted bonestly and with due caution, but is himself deceived...... And their Lordships are of opinion that the validity, force, and effect of the bond, as to all and each of the sums, of which the sum of Rs. 15,000, thereby purporting to be secured, is composed, depend on the circumstances under which the sums, or such of them as were advanced by the appellant, were respectively so advanced by him, regard being had also, in so far as may be just, to the circumstances under which the same were respectively borrowed.‘ Before concluding my observations about the scope of the decision in Hunoomanpersaud Panday’s case1, I would like to make a few observations about the phrase "de facto guardian". In my opinion it is a loose phraseology for the expression "de facto manager" employed in Hunoomanpersaud Panday’s case1, their Lordships in different parts of the judgment used the words, guardian, curator and de facto manager. This phrase is certainly not known to any text of Hindu law, but it aptly describes the relations and friends who are interested in the minor and who for love and affection to him assume superintendence over his estate. A father may not necessarily be the guardian of an illegitimate child, but his de facto guardianship cannot be repudiated. Such is the case of the natural father of an adopted son, cf., Ganga Prasad v. Hara Kanta Chowdhury2. A person who is not attached to the minor by ties of affection or other reasons of affinity and remains in charge of his estate is in truth a mere intermeddler with his estate. In order to come within the scope of the rule in Hunoomanpersaud Panday’s case1 it is necessary that there is course of conduct in the capacity of a manager. In Gour’s Hindu Code, Fourth edition, at page 279 in section 75 it has been laid down as follows: " The following relations are the natural guardians of the person and property of a minor in the order mentioned below, namely: (a) the father, (b) the mother, (c) the paternal relations, (d) the maternal relations. The father is, by reason of his patria potestas, unquestionably the most preferential guardian of all his minor children legitimate or illegitimate, male and unmarried female,and is, as such, entitled both to the custody of their person and property. This right now clearly crystallized by the case-law was but faintly adumbrated in the sacred texts." " In all Smritis the position of the father as the head and guardian of his minor children is taken for granted. But the mother’s right to the guardianship of her minor children is of later growth since the absolute dependence of woman in the ancient Hindu household left no room for assigning her any duties for the protection of her own children, which was left to other male members. Her right may be said to have sprung into being by force of the jus naturale given effect to by the Courts and under the Mithila law, her right is in this respect even superior to that of the father. Her right may be said to have sprung into being by force of the jus naturale given effect to by the Courts and under the Mithila law, her right is in this respect even superior to that of the father. But ordinarily, the father has the right paramount to the custody of his minor children after whom the mother, the paternal relations and the maternal relations come in varying degrees of right. But there is no shastric authority in support of their claim which rests on the nearness of their relationship to the minor and their presumed regard for him." Their right of priority is an absolute one but other relations must derive their authority from the Courts. As pointed out by Mayne on Hindu Law (10th Edn.) at page 299, the Hindu law vests the guardianship of the minor in the sovereign as parens patriae (vide Manu, Chap. VIII, placitum 27) (Macnaghten, p. 25), necessarily this duty is delegated to the child’s relations. Of these, the father, and next to him, the mother, is his natural guardian; any other relative must derive his authority from the Courts. Section 19(b) of the Guardians and Wards Act recognises the priority in appointment of guardians to be assigned to near relations in the absence of the father and mother of the minor. In some decisions in this country it has been laid down that paternal relations and maternal relations are also natural guardians and that a natural father of an adopted son has the same status. The matter was fully considered in a Full Bench decision of the Madras High Court in Chennappa v. Onkarappa1. The following observations from that judgment may appositely be cited: “In support of this contention the learned advocate for the appellant has relied on a passage in the edition of Strange’s”Hindu Law“published in 1864, Fourth Edition, and a passage in Macnaghten’s” Principles and Precedents of Hindu Law “quoted in Kristo Kissore Neoghy v. Kadermoye Dossee2. The passage from Strange is at page 27(a) and reads as follows: ‘The natural guardians of a minor are, first his father, then his mother, elder brother, paternal relatives and maternal relatives.’ The passage from Macnaghten is in these words: ‘A father is recognised as the legal guardian of his children when he exists; and when the father is dead the mother may assume the guardianship. In default of her, an elder brother of a minor is competent to assume the guardianship of him. In default of such brother, the paternal relations generally are entitled to hold the office of guardian and failing such relatives the office devolves on the maternal kinsmen, according to their degree of proximity; but the appointment of guardians universally rests with the ruling power.’ The learned advocate would have it that these passages must be accepted as authoritative support for the proposition that the legal guardianship devolves upon the nearest paternal relative and in default of a paternal relative on the nearest maternal kinsmen. I am not prepared to accept this argument. I consider that it is contrary to principle and accepted authority. It is common ground that the ancient texts of Hindu Law do not provide for the management of a minor’s property beyond stating that the guardianship shall rest with the king. The position of the king is now taken by the Court. Custom has, however, recognized that the father of a Hindu minor, and on his death the minor’s mother, is entitled to the guardianship of the minor’s estate. This has been accepted from time immemorial so universally that the right of the father or of the mother as the case may be cannot now be disputed, but it appears to be equally clear that custom has not extended the rule beyond the mother. In the case of Kristo Kissore Neoghy v. Kadermoye Dossee2, Garth, C.J., referring to the passage from Macnaghten which I have quoted said: ‘We do not think that this passage means that all the persons therein mentioned have in turn an absolute right to take upon themselves the guardianship of a minor, without any permission or authority from the ruling power. If it did mean this, the authorities cited would not appear to support it.’ Garth, C.J., then went on to point out that Jagannatha, one of the authorities cited, after quoting from Manu this passage: ‘The King should guard the property which descends to an infant by the inheritence, until he returns from the house of his preceptor, or until he has passed his minority,’ and from the Ratnacara this statement: ‘Wealth which descends to an infant by inheritance and becomes the property of the minor, let the king guard; that is let him protect it from the other heirs,’ had proceeded to add these observations of his own: ‘Consequently, the meaning is, let him (the king) act in such manner that other heirs may not take the whole; defrauding the infant who is incapable for non-age of conducting his own affairs; or the sense may be, let him commit the share of the minor in trust to any one coheir or other guardian.’ There is here authority that no one in the family is entitled as of right to act as the guardian of the minor. The right to act then depended upon the decision of the king.” The result is that relations under Hindu law have the right to be appointed as guardian by the Court. They are not in the position of utter strangers. The position therefore is that if such persons to whom the law including the statute shows preference in the matter of appointment of guardianship without formally getting themselves appointed by the Court, assume out of affection, charge of the estate of a minor and take upon themselves management of it, pay revenues, realize rents, locate tenants, maintain the minor and do all other acts of management and the Courts and other relations stand by and recognize them as such, should they be treated as officious intermeddlers with the estate. Can they not be aptly and appositely described as de facto guardians of minor’s person and de facto managers of his estate? It was the position of such managers that was recognized in Hunoomanpersaud Panday’s case1, and their acts in the management of the estate, provided they were for the protection of the estate or for the benefit of the minor’s estate, were recognized as valid, the test being necessity and not the authority that they possessed. It was the position of such managers that was recognized in Hunoomanpersaud Panday’s case1, and their acts in the management of the estate, provided they were for the protection of the estate or for the benefit of the minor’s estate, were recognized as valid, the test being necessity and not the authority that they possessed. Recently their Lordships of the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar2 affirmed this view. This was a case where a natural father of a Hindu minor entered into an agreement that the adoptive mother would enjoy the property during her lifetime and it was held to be not effectual in law or by custom as affecting the rights of the adopted son after adoption. There were conflicting decisions in India on this subject and their Lordships examined the matter on principle. The remarks relevant to the present enquiry are these: “How can the consent of the natural father take any effect on the rights of the boy which only arise when his rights as a natural father are non-existent? But if the father cannot do it by virtue of any power in himself, can he do it as guardian of the infant so as to bind him? Farran, J., who is an exponent of this view in the case of Ravji Vinayakrav Jagannath Shankersett v. Lakshmibai3 was curiously mislead by an undue veneration for Mr. Mayne. He quotes a sentence from Mr. Mayne’s work as follows: ‘He (the minor) will also be bound by the act of his guardian, when bona fide and for his interest and when it is such as the infant might reasonably and prudently have done for himself if he had been of full age.’ This quotation is from the third edition of Mayne’s work, and as a universal proposition is obviously unsound. Accordingly, in the fourth edition, which was published soon after the date of the judgment in question, and in all subsequent editions, Mr. Mayne inserted between the words ‘guardian’ and ‘when bona fide’ the words ‘in the management of the estate’ which turns an inaccurate proposition into an accurate one. But it is no longer of service to Farran, J., in the matter in hand, for, assuredly the natural father is not managing the estate of his child when the estate referred to is the estate which he will only get after adoption by another person. But it is no longer of service to Farran, J., in the matter in hand, for, assuredly the natural father is not managing the estate of his child when the estate referred to is the estate which he will only get after adoption by another person. Therefore, reverting again to Lord Macnaghten’s dictum, it seems impossible to ascribe any value to the guardianship power of the natural father to bind the son as to property in which he cannot have an interest until the time when the guardianship has ceased.” These observations bring out the distinction between the position of a de facta guardian so-called and of such a person when in management of the estate. The result therefore is that if a natural father acting as guardian, is in actual management of the estate of the minor, then his bona fide acts for the interests of the minor would be binding on the minor’s estate. The remarks above cited were made in connection with the case of a natural father who is not a lawful guardian under Hindu law. Reference may also be made to another recent decision of their Lordships of the Privy Council in Subramanyam v. Subba Row4. That was a case in which a question arose whether under section 53-A of the Transfer of Property Act a minor could be regarded as a vendor on a contract of sale of property made by his guardian. It was held that on the guardian’s contract he could be held to be a vendor. The following observations made in that case support the view that I have expressed about the construction to be placed on Hunoomanpersaud Panday’s case1: " They submit that, having regard to that section and to the decision of their Lordships’ Board in Mohori Bibee v. Dharmodas Ghose1, a minor cannot be a person who contracts. It is clear that if the mother and guardian had taken no part at all in the transaction, the respondent could not have entered into a valid contract to sell the land in suit to the appellants, but it is equally clear that such a contract could and did come into existence in the present case, and the question for decision is-was the person who contracted, within the meaning of section 53-A, the respondent or his mother? The position of a guardian under the Hindu law was considered by thier Lordships’ Board in the case of Hunoomanpersaud Panday’s case2, and the following passage is to be found at page 412: ‘They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her.’ Thus the act of the mother and guardian in entering into the contract of sale in the present case was an act done on behalf of the minor appellant. The position of the minor under such a contract is discussed in the following passage, with which their Lordships agree, in Pollock and Mulla’s Indian Contract and Specific Relief Acts, 7th Edition, p. 70: ‘ A minor’s agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions following English authorities which are applicable only on the view now overruled by the Privy Council.’ The learned authors are here referring to the decision in the case of Mohori Bibee v. Pharmodas Ghose1 already cited. They continue:- ‘It is, however, different with regard to contracts entered into on behalf of a minor by his. guardian or by a manager of his estate. In such a case it has been held by the High Courts in India in a case which arose subsequent to the governing decision of the Privy Council that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all.’ In the present case neither of the two conditions mentioned is wanting, having regard to the findings in the Courts in India. It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, not his mother, was owner. It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, not his mother, was owner. If an action had been brought for specific performance of the contract, it would have been brought by or against the respondent and not by or against his mother. Having regard to all the circumstances, their Lordships are of the opinion that the respondent is the person who most aptly answers the description of the transferor in the sense in which these words are used in section 53-A. It follows that he is debarred by the section from obtaining the relief claimed by him in the present action, which was rightly dismissed by the Subordinate Judge." The decision in Hunoomanpersaud Panday’s case2, therefore, so far as it concerns the powers of a de facto manager under Hindu law, is supported by texts of Hindu law, by later decisions of their Lordships of the Privy Council and by the rule of stare decisis. The observations made by some learned Judges in a number of judgments doubting the above proposition and placing a different construction on it are in my judgment unsound. In Ram Nath v. Sant Ram3, Beckett, J., felt the awkwardness of the application of the rule in Hunoomanpersaud Panday’s case2 to a situation where a de facto guardian had transferred a reversionary interest of a minor and the act was a prudent one in the minor’s interests. He thought that though the powers of a de facto guardian under Hindu law were wider than under other systems, yet he had no power to dispose of a reversionary interest of the minor, though this may seem to be a prudent step at the time when it is taken. In expressing this view the learned Judge said as follows: " It is still to be seen whether a de facto guardian has power to act in this way in what he conceives to be the interest of the minor. The powers of a de facto guardian are wider under Hindu law than under other systems; but they have nowhere been very clearly laid down. The powers of a de facto guardian are wider under Hindu law than under other systems; but they have nowhere been very clearly laid down. He has the same powers as a de jure guardian to dispose of a portion of the ancestral estate in order to avert a threatening calamity. This was laid down by their Lordships of the Privy Council in Hunoomanpersaud Panday’s case2, which must be regarded as a standard authority on this point. I am unable to trace the passages from Colebrooke’s Digest which are mentioned therein as the edition is not given, but I have studied the passages of the Mitakshara on which the powers of a de facto guardian are said to be founded. These relate only to the management of an estate in being and it is clear that there must be some threatened calamity to the ancestral estate which can only be avoided by disposing of a part thereof. On the whole, I do not think that the powers of a de facto guardian should be extended in the absence of express authority and I do not think they should be taken as including the power to dispose of a reversionary interest, though this may seem to be a prudent step at the time when it is taken." With great deference to the learned Judge, it may be observed that it was not necessary to limit the powers of a de facto guardian in the manner suggested. They are already of a limited character. The limitations are germane to the rule itself. That case stood decided against the power of the guardian if the decision in Hunoomanpersaud Panday’s case1, was rightly applied as explained in Krishnamurthi Ayyar v. Krishnamurthi Ayyar2. The guardian de facto was not in management of the reversionary interest of the minor. He was not therefore de facto manager of the estate and obviously had no power to dispose it of. The true test to be applied in deciding cases of this character is one of necessity and not one of authority of the person doing the act. He was not therefore de facto manager of the estate and obviously had no power to dispose it of. The true test to be applied in deciding cases of this character is one of necessity and not one of authority of the person doing the act. In the light of the above discussion the next question that falls for decision is whether a de facto guardian (manager) can also incur simple debts without charging the estate and bind the minor’s estate, though not making the minor personally liable for those debts, provided those debts are incurred in situations and circumstances stated in Hunoomanpersaud Panday’s case1. Contracts of loan entered into by the guardian, though they do not bind the minor’s person, bind the estate by an indirect process. The guardian himself can become liable for those debts personally and entitled to re-imbursement and indemnity from the minor if the debts are incurred for the needs of the minor. When the guardian himself has the right to re-imbursement and indemnity from the minor, the creditor on the rule of subrogation would no doubt be entitled to proceed against the property of the minor. This rule is subject to two exceptions in which a lender has direct recourse to the minor’s estate, where the contract is for necessaries supplied to or on behalf of the minor and, where the liability is one to which the minor is subject under Hindu law. These exceptions are supported by judicial authority and on the principles of English law and in section 68 of the Indian Contract Act. In these two circumstances the guardian may directly incur a debt on behalf of the minor and bind his estate. Recourse to the principle of subrogation is unnecessary in such cases. Section 68 of the Indian Contract Act runs as follows: " If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable persons." Under this section it has been held that a loan taken to defend a litigation by the guardian can be realized from the minor’s estate. In Phalram v. Aiyub Khan3, a guardian had borrowed a loan on foot of a promissory note and the minor’s estate was held liable on a suit based on the promissory note. The cause of action was held to be the loan itself and not the note. Similarly in Watkins v. Dhunno Baboo4, a contract of a guardian on behalf of a minor was held binding. In Sham Char an Mal v. Chowdhury Debya Singh Pahraj5, a minor was held bound on the document having been registered on behalf of the minor and it was held that the bond could not be ignored and treated as non-existing. This was a case of a minor’s own bond. These decisions were given under section 68 of the Indian Contract Act. As regards English law on the subject, reference may be made to Halsbury’s Laws of England (Hailsham Edition), Vol. 17, page 1313. It is said there that certain things are necessary, such as food, clothing, medicine, lodging, cost of the funeral of a member of the infant’s family, education of the infant, protection of the infant from legal proceedings and protection of his interests by instruments and legal proceedings, and that when a sum of money is advanced to an infant to enable him to provide himself with necessaries, he cannot give a binding security for it, nor draw or accept a bill in respect of it, but the lender stands in equity in the place of the supplier of the necessaries and accordingly can maintain an action for the money and his right in this respect is not prejudiced by the infant having given an invalid security for it. Lord Esher, Master of the Rolls, in Walter v. Everard1, laid down the rule of law on this subject in the following terms: “We have looked at the authorities in order that we may see whether in an action upon a bond given by an infant for the payment of a premium for his education in a trade, it is open to the jury to find that the consideration for the premium was the supply of necessaries to the infant, and whether if the jury find that it was, the fact that the document was under sale will prevent the plaintiff from recovering. It is not true that you can sue an infant upon a bond given by him for the price of necessaries supplied to him with all the ordinary incidents of such an action. The plaintiff cannot simply put in the bond against the infant, and say, that bond is under your seal, and there can be no inquiry into the consideration given for it. We have to go back to the old authorities to see whether this is so. The defendant’s counsel contends that there is no instance of an infant having been sued upon such a bond. But the old books shew that such an action has been brought before-not, of course, very frequently because it was not the common practice for an infant to execute an apprenticeship deed for the purpose of covenanting to pay the premiun. As a general rule the premium was paid or to be paid by the infant’s parents or friends, and they bound themselves to pay it, and in ordinary cases the master did not look to the infant, but to his friends who had made themselves responsible. But there are authorities of very great weight which shew that the infant can bind himself in such a case. The first authority is to be found in a passage in Coke upon Littleton. (His Lordship read the passage and continued:) You cannot sue the infant upon his bond, as a bond. But, if the bond is what is called a ‘single’ bond-that is, if it is given only for the reasonable price of necessaries supplied to the infant, and there is no penalty, the infant can be sued upon it. Why, if an infant can be sued, as it is well settled that he can, for the price of necessaries supplied to him, should he not be sued for the same thing upon his bond which he has given for it. To say that he could not, would have been the height of technicality even in the most technical age of the English law. Again, Mr. Hargrave explains the matter in exactly the same way in his note to Coke upon Littleton. Has this view of the law been acted upon by the Courts? Ayliff v. Archdale2 shews distinctly that it has. Again, Mr. Hargrave explains the matter in exactly the same way in his note to Coke upon Littleton. Has this view of the law been acted upon by the Courts? Ayliff v. Archdale2 shews distinctly that it has. Then in Russel v. Lee3 it was held that an infant’s single bill for necessaries was good, but not an obligation with a penalty. There reliance was placed on the above passage in Coke upon Littleton, and the case was a judicial declaration of the law in accordance with it. Again, in Keane v. Boycott4, the same passage in Coke was cited with approval, and the decision amounted to a declaration that it was the law. So in Baylis v. Dineley5, Bayley, J., recognized the law as laid down by Coke, and impliedly expressed his approval of it. It is true this is not a binding decision, but the authority is a very high one. Then, in Cooper v. Simmons6, Martin, B., gave a very elaborate exposition of the law, reviewing the authorities, and laying down the law in accordance with them. It comes in the result to this-that a bond given by an infant for the price of necessaries does not prevent the obligee from recovering that price from him, if the bond is a single one, and it is not relied on simply as a bond. In the same way an infant can be sued upon a covenant by deed for the price of necessaries, but the case must be treated just as if there had been no deed. The Court must inquire whether the things in question were in fact supplied to the infant, and whether, according to the ordinary rule, that which was supplied was necessary. The Court must do exactly what it would do if there were no deed, and what it certainly would not do in the case of an ordinary deed not given by an infant.” Fry, L.J., also dealt with this question and the following observations at page 325 may appositely be cited: “Lord Coke says that: ‘An infant may bind himself for his good teaching or instruction, whereby he may profit himself afterwards’. I think that ‘teaching or instruction’, though it includes instruction in a trade, is not necessarily confined to that. I think that ‘teaching or instruction’, though it includes instruction in a trade, is not necessarily confined to that. I should be sorry to conclude that literary instruction likely to lead to the infant’s success in a learned profession is not within the observations of Lord Coke; the interests of the State require that an infant should be able to bind himself for instruction of that kind.” Lopes, L.J., added a few observations to the following effect: “I will content myself with saying that a careful investigation of the authorities satisfies me that the law is this-that an infant can be sued upon his single bond-that is a bond without a penalty-given for necessaries supplied to him, provided it is shown that the thing for the price of which the action is brought was necessary, and that the charge made for it was reasonable. I am satisfied that this is the true result of the authorities.” In English law, however, the real estate of an infant cannot be bound by a contract, nor settled or alienated by his guardian or parent apart from statutory authority. It cannot even be alienated under the orders of the Court. The rule of Hindu law and statute law in India however is different on this point. The decisions of different High Courts in India on this question may now be considered. In the Bombay High Court the matter was considered in Nathuram v. Shoma Chhagan1, where the father’s cousin of a minor took possession of his estate after the death of his father. To defray the expenses of the funeral ceremonies of the deceased, he borrowed money from the plaintiff, who sued to recover the amount from the estate of the deceased. It was held that as nearest male relative and guardian, according to Hindu law, the father’s cousin had authority to bind the estate in the hands of the minor so far as the loan was necessary to secure the proper performance of the funeral ceremonies of the minor’s father. The contention was raised, in that case that Narain Hargovan, the father’s cousin, who was not the guardian, was personally liable and had no authority to bind the estate. The contention was raised, in that case that Narain Hargovan, the father’s cousin, who was not the guardian, was personally liable and had no authority to bind the estate. Sargent, C.J. and Telang, J., held that he being the nearest male relative and guardian according to the Hindu law of the orphan minor, whose duty it was to provide for the funeral ceremonies of his deceased father, had the authority to bind the minor by a loan, supposing it to be necessary for the purpose, and reliance was placed on the case of Bai Amrit v. Bai Manik2. The authority of this decision has never been questioned in that High Court so far. In Madras there is considerable body of authority on this point. The matter is concluded by a Full Bench decision in Ramajogayya v. Jagannathan3, in which the decision of their Lordships of the Privy Council in Waghela Rajsanji v. Sheikh Masluddin4, was considered. The first decision to which reference may be made in Kotta Ramaswami Chetti v. Bangari Seshamma Nayanimvari5. A polygar (zamindar in charge of an estate) incurred certain debts and the estate of other persons included with his own was sued on for this debt. The bond given was a simple money bond and was executed by him as a de facto polygar. The issue in the case was whether the other defendants were liable for the debt under the bond and whether it could be recovered from the Poliem estate. In deciding the case the learned Judges said as follows: " In the view of the Hindu law, such debt, if binding on the family should be paid out of their common estate. The creditor could sue the family and in equity and good conscience he would be entitled to have it, declared by a decree that the debt is charged on the estate, the debt does not become a charge until so declared by a court of competent jurisdiction and so far it differs from a charge created by express contract. In Hunoomanpersaud Panday v. Mussumat Koonweree6, the case dealt with was one of an express charge and so it was in very many other cases. In Hunoomanpersaud Panday v. Mussumat Koonweree6, the case dealt with was one of an express charge and so it was in very many other cases. The principle, however, to be applied, whether in respect of an express charge in writing or by deposit or of a loan of money to, or other debt created by, a manager without such express charge, is the same. If such express charge be given it cannot bind those members of the family who are not parties to it unless the debt was contracted for proper necessary family purposes or benefit binding on the family; and, if it was not so contracted the express charge is not valid against those members who were not parties to it. There is an exception when the lender or creditor has made due and proper inquiry but has been misinformed as referred to in Hunoomanpersaud Panday’s case6. The same principle applies to simple loan or debt. In each case the manager acts as agent of the family and his acts are subject to the same consideration and question. In point of principle and law, the simple loan and the express charge require the same foundation to bind the family and the estate. But in point of security, it may be that the express charge is preferable security, in that way, viz., if the lender trusts to the mere debt, unsecured by pledge of property, he runs the risk of the property being alienated, before he can enforce his debt and of thereby losing the benefit of the security on any family property, whereas a specific charge created by writing, fixes the security as far as can be accomplished, and prevents, generally speaking, the alienation of the security to the prejudice of the creditor. If the family estate remains unalienated or unpledged by the family, after the unsecured debt is created, it still remains to satisfy the creditor, if his debt is valid, against the family, even though there was no such express charge. Although the late polygar may not have been polygar de jure’ yet his right having been admitted by Government, he was not a usurper who had forced himself into possession against the rights of others as in Chidambara Chetti v. Srimatu Muttu Vijia and others7. Although the late polygar may not have been polygar de jure’ yet his right having been admitted by Government, he was not a usurper who had forced himself into possession against the rights of others as in Chidambara Chetti v. Srimatu Muttu Vijia and others7. From the observations in that case, it is pretty clear that the fact of absence of title would not be a bar to the claim of a creditor, who had advanced moneys even to the usurper for a purpose binding on the family. The question, therefore, is whether the debts sued for were incurred by the deceased Polygar ‘for the purpose of providing for some family need, performance of a religious duty, or for the benefit of the estate’." In Duraiswami Reddi v. Muthial Reddi1, Miller, J., held that a bond executed by the guardian of a minor which only contains a personal covenant by the guardian to pay and does not charge a minor’s estate will nevertheless be binding on the minor, if it is executed for a pre-existing debt binding on him. It was observed that a de facto guardian has the power to acknowledge a pre-existing liability and to keep alive a bond. The whole matter was considered by a Full Bench in Ramajogayya v. Jagannathan2. The Full Bench was presided by Sir John Wallis, C.J., and Ayling and Seshagiri Ayyar, JJ. The decision of the Privy Council in Waghela Rajsanji v. Sheikh Masluddin3 was considered. The learned Chief Justice held that that decision precluded a guardian from imposing a personal liability upon the minor. It was observed that as pointed out in Maharana Shri Rammalsingji v. Vadilal Vakhatchand4, the Privy Council decision did not affect the liability of the minor’s estate under section 68 of the Indian Contract Act to persons who have supplied him during minority with necessaries suited to his condition in life. It was observed that as pointed out in Maharana Shri Rammalsingji v. Vadilal Vakhatchand4, the Privy Council decision did not affect the liability of the minor’s estate under section 68 of the Indian Contract Act to persons who have supplied him during minority with necessaries suited to his condition in life. It was further observed that where a guardian himself borrows money for the necessities of the minor in such circumstances as to give him a right to re-imbursement from the minor’s estate, his creditor may in a proper case be subrogated to his rights, that in practically all the cases which were referred to it would be found that the minor’s estate could have been made liable under one of the first two heads independently of any contract by the guardian on his behalf, that no practical inconvenience would therefore result from giving full effect to their Lordships’ express decision. The other two learned Judges disagreed with the Chief Justice and held (a) that on a contract entered into on behalf of a minor by his guardian under which the guardian borrowed money but no charge was created on the minor’s estate, no decree could be passed against the minor on his attaining majority except in cases in which a minor’s estate would have been liable for the obligation incurred by the guardian under the personal law to which he was subject; and (b) that a decree could be passed against a Hindu minor for a debt contracted by his guardian for the marriage of his sister. It was observed that the Privy Council decision in Waghela Rajsaryi v. Sheikh Masluddin3, intended to lay down that an onerous covenant cannot be imposed by the guardian upon the person or property of the minor. This was the view expressed by Woodroffe, J., in Mir Sarvarjan v. Fakhruddin Mohamed Chowdhuri5, and was accepted by Seshagiri Ayyar, J., as the correct view as regards the Privy Council decision cited above. The Full Bench decision subsequently been followed in Madras in A.I.R. 1932 Mad. 654, Zamindar of Polavaram v. Maharaja of Pittapuram6, Sudarsana Rao v. Dalayya7, Natesa Nattar v. Manuka Nattar8 and Satyanarayanamurti v. Gopalan9. The Full Bench decision subsequently been followed in Madras in A.I.R. 1932 Mad. 654, Zamindar of Polavaram v. Maharaja of Pittapuram6, Sudarsana Rao v. Dalayya7, Natesa Nattar v. Manuka Nattar8 and Satyanarayanamurti v. Gopalan9. In Annamalai v. Muthuswami10, Sir Lionel Leach, Chief Justice and Krishnaswami Ayyangar, J., held that the true test for determining the binding character of a Hindu minor’s estate for a simple contract debt incurred by his guardian is that laid down by the Privy Council in Hunoomanpersaud Panday’s case11, and that under Hindu law the guardian has power to contract loans so as to bind the minor’s estate for necessary purposes, the term " necessary purposes " being understood as comprising all that is necessary to meet the wants of the minor and of other members of his family who have claims either against him personally or against his estate, and that there is in this respect no difference in the test to be applied whether the money is obtained by, pledge or sale of the property or by way of a simple loan. This decision was given on a Letters Patent Appeal against a decision of Venkataramana Rao, J., who had drawn a distinction between simple loans and loans borrowed on the security of property. The learned Judges on this part of the case observed as follows: “That such a guardian has the power to borrow by charging, mortgaging or even by selling the estate or a sufficient portion of it, for purposes termed necessary or beneficial according to that law, cannot at this time of the day be questioned. It is also settled that even in the absence of a proved necessity or benefit, an honest creditor can still recover the debt from the estate if he can show that in advancing the money he acted in the bona fide belief after due enquiry that the guardian was acting for such a purpose in incurring the debt. These principles, which are based as much on Hindu law as on general considerations of equity, have been held to afford a test of the validity of similar transactions by other persons also who occupy analogous position. The manager of a joint family governed by the Mitakshara, female owners in possession of inherited property, the head of a mutt, and the Dharmakartha of a temple are among the class of persons whose powers are so limited. The manager of a joint family governed by the Mitakshara, female owners in possession of inherited property, the head of a mutt, and the Dharmakartha of a temple are among the class of persons whose powers are so limited. Indeed, it can be truly said that what the Judicial Committee said with regard to a guardian in Hunoo-manpersaud Panday’s case1, has become an integral part of the branch of the law relating to the borrowing powers of all qualified owners. In the case of all such persons there exists in fact no difference in the test to be applied whether the money is obtained by pledge or sale of the property, or by way of a simple loan.” The decision of the Madras High Court in Ramanathan v. Palaniappa2, was cited with approval. Therein it was said as follows: “We find it difficult to appreciate an argument which denies to the guardian a power to contract a simple debt while conceding to him in identical circumstances a power to charge or even sell the estate in spite of the greater strictness with which the Hindu law regards transactions affecting immoveable properties.” Following further observations were made in the Letters Patent Appeal judgment: “To this proposition an answer was attempted. A sale or a mortgage, it was said, affects that portion only of the minor’s estate which is involved in the particular transaction whereas a simple money loan might endanger the entire estate by reason of the possibility of a limitless expansion by way of accumulating interest. Even if this is a sound proposition, which we doubt, there is no reason why it should not equally apply to other limited owners whose position is analogous to that of the guardian. Such is not, however, the case. The evil, if any, is due not to the honest creditor who lends the money, but to the irresponsible guardian who negligently omits to take prompt steps to repay it. In this connection it is not to be forgotten that the creditor has to make out a necessity not merely for the loan advanced but also for the rate of interest charged. A trustee or an executor stands in a different position and to him the principles of the English law which prohibits him from binding the minor by a personal covenant are rightly applied; see Srishehandra Nandi v. Sudhirkrishna Banerji3. A trustee or an executor stands in a different position and to him the principles of the English law which prohibits him from binding the minor by a personal covenant are rightly applied; see Srishehandra Nandi v. Sudhirkrishna Banerji3. To him however no less than to the guardian, the doctrine of subrogation is applicable. This doctrine is to be invoked in cases where there is no direct contractual liability enforceable against the estate. Where the trustee or the executor does not sell or charge but merely contracts or covenants, the effect of the transaction is that it binds him personally and not the estate and consequently there is no direct recourse against the estate available to the creditor. But the law goes to this extent to his help that if the money is utilized for the benefit of the estate, he will be entitled to such rights of re-imbursement as the borrower himself may have out of it. It is necessary to sound a note of caution against the error of thinking that the promissory note evidences a contract binding on the minor by force of the instrument itself. The liability does not arise on the instrument, but on the debt evidenced by it, and is enforced against the estate, not on account of the fiction that the contract of the guardian is the contract of the minor, but on account of the substantive principle of the personal law of the minor which creates the liability. It is scarcely necessary to add that the liability of the estate, though personal in the English law sense of the word is not personal in the sense that the person of the minor even after majority can be arrested in execution. A personal liability arising out of the contract of the guardian is a liability of the minor’s estate only.” In Sudarsana Rao v. Dalayya4, Wadsworth and Patanjali Sastri, JJ., held that a contract made by the guardian of a Hindu minor to pay maintenance to the minor’s paternal grandmother is binding on the minor and a decree can be passed against the minor’s estate in respect of such a contract. It was said that the decision of the Full Bench in Ramajogayya v. Jagannathan1, could not be taken to have been overruled by the decision of the Privy Council in Zamindar of Polavaram v. Maharajah of Pittapuram2. It was said that the decision of the Full Bench in Ramajogayya v. Jagannathan1, could not be taken to have been overruled by the decision of the Privy Council in Zamindar of Polavaram v. Maharajah of Pittapuram2. The following quotation from the judgment may be cited: “It is no doubt true that the decree granted by this Court against the ‘general assets’ of the minor was based upon the decision of the majority of the Full Bench in Ramajogayya v. Jagannathan1 and that it was vacated by their Lordships. But after a careful reading of the judgment of the learned Judges in Zamindar of Polavaram v. Maharajah of Pithapuram3, we are unable to discover any warrant for the view that the learned Judges found that the defendant could not be held personally responsible for the payment of the debt incurred by his guardian during his minority. This position, however, appears to have been conceded before their Lordships and it was held to follow as a corollary that the plaintiff could not get a decree against the ‘general assets’ of the defendant. We find it difficult to aceept the suggestion that the brief pronouncement made on such a view of the matter presented to their Lordships was intended to overrule the Full Bench decision in Ramajogayya v. Jagannathan1.” In the Lahore High Court the same view has been taken. Reference may be made to Manohar Lal v. Ratan Singh4. So far, as the Calcutta High Court is concerned the leading case is that of Bhaval Sahu v. Baijnath Pratap Narain Singh5, where Brett and Holmwood, JJ., expressed the opinion that the rule that a natural guardian cannot bind a minor by a simple contract debt is subject to modifications and that if it is for necessary purposes, then it binds the minor’s estate. Reference may be made to the following observations at pages 327 and 328 of the report. “The rulings relied by the District Judge lay down that a guardian cannot bind his ward personally by a simple contract debt, by a covenant, or by any promise to pay money or damages, but this broad proposition is subject to the modification that the promise will not bind the minor unless it has been made merely to keep alive a debt for which the ward’s property was liable: Subramania Ayyar v. Arumuga Chetty6. Where the promise is to pay money which has been expended for necessaries the estate of the minor may be liable not on the promise but because the money has been supplied: Sundararaja Ayyangar v. Pattanathasami Tevar7 and Act IX of 1872, section 68.” In the Allahabad High Court the same view has been taken in Kandialal v. Muna Bibi8. In Patna in Suchit Chaudhuri v. Harnandan Singh9, it was held that the guardian of a Hindu infant has power to contract loans on behalf of the minor for the latter’s necessities and benefit. On the decisions of the High Courts in India it seems therefore clearly well established that within the limited purposes laid down in Hunoomanpersaud’s case10 the natural grardian of a Hindu minor can incur a simple money loan and bind the minor’s estate, though otherwise he may not be able to bind him, i.e., either by covenants or agreements, which do not fall within the rule laid down in Hanoomanpersaiud’s case10, and are either of an onerous character or are not entered into by a person in management of the estate for the protection of that estate or to safeguard any dangers to that estate. By implication these powers exist in him by reason of the provisions of section 27 of the Guardians and Wards Act and are deducible from certain observations made in Hunoomanpersaud Panday’s case10. The quotations already cited from that judgment lend support to this view. It will not be convenient to consider the Privy Council decisions bearing on this point. The relevant quotation from the decisions in Waghela Rajsanji v. Sheikh Masluddin11, has been cited in an earlier part of this judgment. An onerous liability had been imposed by the covenant on the Talukdar during his minority by his guardian and it was held that it was not binding on him. In my judgment the majority judgment of the Full Bench in Ramajogayya v. Jagannathan1 correctly interprets the scope of that decision and it should not be widely construed as was done by Wallis, C. J., who dissented from his colleagues. My Lord Sir Fazl Ali in the judgment just delivered has endorsed the opinion of the Chief Justice Wallis. In my judgment the majority judgment of the Full Bench in Ramajogayya v. Jagannathan1 correctly interprets the scope of that decision and it should not be widely construed as was done by Wallis, C. J., who dissented from his colleagues. My Lord Sir Fazl Ali in the judgment just delivered has endorsed the opinion of the Chief Justice Wallis. With the greatest of deference to my brother I venture to say that both on principles of Hindu law and decisions it is rather late in the day to uphold the view that a natural guardian has no power to incur such liability and perforce in every case he must charge the estate. The next case is in Watson & Company v. Sham Lal Mitter1. In that case a mother purchased for a minor son certain rights in land and also agreed to the enhancement of rent payable by the tenants. She contracted for enhancement of rent as guardian of her minor son. It was held that her agreement for the enhancement of rent acting in lawful capacity was binding on the minor’s estate. This decision seems in accord with the view taken in Hunoomanpersaud Panday’s case2. In Indur Chander Singh v. Radhakishore Ghose3, the Privy Council held that the renewal of lease of land by a manager was not binding on the adopted son. It was observed that the Kabuliyat executed by the mother on which the plaintiff’s claim was founded did not purport to bind the estate of the deceased. There was nothing in the lease to show that it was taken for the benefit of the minor. Hunoomanpersaud Panday’s case2 was distinguished on the ground that in that case the mother was dealing with the estate of the minor, while in the present case the act was not committed as manager. The following observations bring out the distinction clearly: - " The contention that the minor and widow of Gopi Mohun Ghose had power to bind the minor by contract was abandoned in the Court below, and their Lordships are of opinion that such a contention could not be sustained. The following observations bring out the distinction clearly: - " The contention that the minor and widow of Gopi Mohun Ghose had power to bind the minor by contract was abandoned in the Court below, and their Lordships are of opinion that such a contention could not be sustained. But it was suggested that, under the terms of the will of Gopi Mohun Ghose, his mother and widow had power to bind his estate, and had done so, that the respondent, having succeeded to that estate, is bound by the act of his adoptive mother and grandmother as his guardians, done in bona fide belief that it was beneficial to the estate. Their Lordships are of opinion that this is not the claim made by the plaintiff’s plaint. It does not make any claim against the estate, but makes a personal claim against Nrityashama Dasi, and the respondent whom it states she had adopted. While a liberal construction should be given to pleadings so as to give effect to their meaning to be collected from their whole tenor, they ought to be expressed with sufficient definiteness to enable the opposite party to understand the case he is called upon to meet, and their Lordships consider that neither in plaint, nor in the issues which cover a wider ground than the plaint, is the claim made against the estate of the deceased Gopi Mohun Ghose. Indeed,if it was, and was sustained in that sense by the Subordinate Judge, it is difficult to see why the suit should have been dismissed against the widow and guardian. It is indeed now urged that the suit may be treated as a claim against the estate and against the heir, to the extent of assets received by him, but there is quite enough in the evidence to show that a claim so put would raise entirely new issues both as to the extent of assets received and as to the extent to which the plaintiffs themselves were responsible for the renewal of the lease; that it would, in fact, be a new suit, and that it would be improper to allow such a change of case at this period of the litigation. But, further, their Lordships are of opinion that upon the facts proved, the suit, even if treated as one against the respondent in regard to the estate, cannot be sustained. But, further, their Lordships are of opinion that upon the facts proved, the suit, even if treated as one against the respondent in regard to the estate, cannot be sustained. The Kabuliyat executed by the mother and widow of Gopi Mohun Ghose, on which the plaintiff’s claim is founded, does not purport to bind the estate of the deceased. By it the lessees undertake themselves to pay the rents and interest on any arrears and to observe the obligations of the lease. The learned Subordinate Judge, while admitting that there is nothing in the lease to show that it was taken for the benefit of the respondent, says that that fact is immaterial when it is proved that the lease was really taken for the respondent, and that the lessees were in possession for his benefit; and he relies on the case of Hunoomanpersaud Panday3 as an authority. In that case, however the managers of an infant’s estate were actually dealing by way of mortgage with a portion of that estate, and it was held that the manager might do so in a case of need or for the benefit of the State, and that the fact that the mortgage contained the inaccurate statement, that the mortgagor had a beneficial proprietary right, was immaterial. But in the present case the mother and widow of Gopi Mohun Ghose were not dealing with, and did not purport to deal with or affect his estate, but were incurring new obligations which it is now sought to transfer from them to the estate. It may be that as between them and the infant, they might be able, in some circumstances to show that the estate ought to bear the burden they had taken upon themselves, but that is not the question raised in this case, in which the plaintiffs seek to establish a direct relation between themselves and the estate of the infant and a liability on the part of the infant now that he is of age, and of his estate, to fulfil the obligations entered into by the lessees in their own name." Biswanath Prasad v. Chandra Narayan Chowdhury1, is the next Privy Council decision touching this point. In this case the question arose as to the personal liability of a minor under a mortgage bond executed by the guardian. In this case the question arose as to the personal liability of a minor under a mortgage bond executed by the guardian. Their Lordships observed as follows: " As regards the alternative claim for a personal judgment for the mortgage debt, it is to be observed that no such claim was made in the Courts in India. There is nothing in the evidence or in the judgments which would enable their Lordships to deal with such a claim. At the same time their Lordships think it desirable in this case that the plaintiffs should have an opportunity of bringing this matter before the High Court. If any such application is made, it will be for the High Court to consider whether any such claim is open upon the present pleadings and, if not, whether any amendment raising it should be made; and further, whether under all the circumstances the claim should be entertained at this stage of the proceedings. If the High Court should think it right to enter upon the consideration of this claim, all defences on the merits or arising out of the lapse of time must be open to the defendants, and the High Court should have power to impose any terms which it thinks just and to deal with the costs." The last Privy Council decision is in Zamindar of Polavaram v. Maharajah of Pittapuram2, where it was held that where a mortgage deed by the guardian of a minor contains a personal covenant and a suit on the deed fails for want of proof of attestation of the deed but succeeds on an alternative claim of a vendor’s lien on the suit property, a decree should not be granted against the general assets of the minor. A decree against the general assets of the minor was denied on the ground that the minor had no personal liability, but a decree was passed against the property that had been sold and which belonged to the minor. The suit succeeded on the basis of an alternative claim of a vendor’s lien on the suit property. The result of these Privy Council decisions is that they were really given on the facts of each case and they did not lay down any general proposition of law which ran counter to the decision in Hunoomanpersaud Panday’s case3. The suit succeeded on the basis of an alternative claim of a vendor’s lien on the suit property. The result of these Privy Council decisions is that they were really given on the facts of each case and they did not lay down any general proposition of law which ran counter to the decision in Hunoomanpersaud Panday’s case3. Each case has been decided according to its own peculiar circumstances and the observations made therefore in these cases must be limited to the covenants that were under consideration therein. Nothing said in those cases detracts from the proposition laid down by the Full Bench of the Madras High Court in Ramajogayya v. Jagannathan4 and the decision correctly lays down the rule to the effect that a de jure guardian can borrow debts on simple contracts entered by him on behalf of the minor pro-‘ vided they fall within the limits laid down in Hunoomanpersaud’s case3. This rule is fully supported by the principles underlying section 68 of the Indian Contract Act and the Hindu law texts above cited from Colebrooke’s Digest, all of which relate to cases of simple loans. The rule is also consistent with the English law on the subject. It is immaterial whether the minor is sued directly on the bond, or is indirectly made liable by recourse to the doctrine of subrogation. As regards the question whether the same rule is applicable to the case of a de facto manager of a minor’s estate, there seems to be ground on which his case can be distinguished from that of a natural guardian. When the de facto guardian is the de facto manager of the estate according to the text books writers on Hindu law, he enjoys the same powers and the same status as a natural guardian except, of course, in cases where the statute law of the country has intervened and has laid down the rule differently. The touchstone of necessity is the guiding principle in both cases. The view of the commentators on Hindu law is based on Hunoomanpersaud Panday’s case3, and on the other Indian decisions in which observations have been made to that effect. The next question is as to the forms of security offered by a guardian for the borrowing made on behalf of the minor.. The view of the commentators on Hindu law is based on Hunoomanpersaud Panday’s case3, and on the other Indian decisions in which observations have been made to that effect. The next question is as to the forms of security offered by a guardian for the borrowing made on behalf of the minor.. In my opinion, the form of security given does not affect materially the rights of a creditor. It may be a bond, a hand-note or a promissory note. If the borrowing is for the necessities of the minor, his estate is bound. He may give these documents in his own name, make himself personally liable and indicate that they have been executed for the minor’s benefit. The creditor can then recover from the minor’s estate. He may execute these on behalf of the minor and exclude his personal liability and except in the case of a promissory note the same result may follow. The last question for consideration is whether a guardian can execute a promissory note on behalf of a minor and bind him on the note without making himself liable, no matter whether the guardian is de jure or de facto. In my opinion, this question should be answered in the negative. The note, however, can be used as evidence of the debt or as an acknowledgment of a previous loan provided the de facto guardian or the de jure guardian is entitled in law to acknowledge or renew a promissory note. The basis for my answer is to be found in sections 4, 19, 32, 36, 43 and 118 of the Negotiable Instruments Act. The first and essential requisite of a promissory note is certainty, i.e., certainty as to the person making the payment, the persbn to receive it, the time and place of payment, the conditions of liability and also the amount to be paid. The note must be payable at all events. When no time of payment is specified, it is payable on demand. The maker of a promissory note is bound to pay the amount at maturity according to the apparent tenor of the note and every party to a negotiable instrument is liable thereon, to the holder in due course until the instrument is duly satisfied. When no time of payment is specified, it is payable on demand. The maker of a promissory note is bound to pay the amount at maturity according to the apparent tenor of the note and every party to a negotiable instrument is liable thereon, to the holder in due course until the instrument is duly satisfied. Even if the instrument is executed without consideration, the holder for consideration and every subsequent holder deriving title from him, may recover from him, from the transferor for consideration or any prior party thereto. It is obvious therefore that a promissory note by itself is an onerous kind of a document and making a minor liable on such document would fall outside the purview of the rule of necessity laid down in Hunoomanpersaud Panday’s case1, and the minor on such a note may have to pay without having the opportunity of raising the defences allowed to him under Hunoomanpersaud Panday’s case1or asking the lender to satisfy the conscience of the Court on those matters. The decisions on the point may now be considered. In Bombay there are a few cases regarding promissory note executed by certificated guardians. These are in Keshan v. Balaji2, and Shankar v. Nathu3. In both the cases promissory notes were executed by certificated guardians. In one case the note was executed by the guardian against the directions of the Court. It was held, on the lines of the rule, laid down in Waghela Rajsanji v. Sheikh Masluddin4, that there was no liability of the minor on the promissory notes. It was further observed that the suits were not on the obligation of the debt but upon the promissory notes. The result of these decisions is that even if a promissory note is executed by a certificated guardian, no liability can be fixed to the minor on the note itself. But if an action is founded on the debt and the debt is for necessity, the minor’s estate may be held liable. The latest decision in that Court is in Nagindas Gokuldas v. Bhimrao Damu5, in that case it was held that a de facto guardian could not pass a promissory note for an antecedent debt of the father of the minor. The latest decision in that Court is in Nagindas Gokuldas v. Bhimrao Damu5, in that case it was held that a de facto guardian could not pass a promissory note for an antecedent debt of the father of the minor. The suit in that case was based on the promise contained in the note and not on the debt incurred or on the ground that the money had been supplied for necessary purposes, and it was observed: " In the present case, it cannot be said that because the promissory note was passed for the father’s debt, it created a charge on the estate. Moreover, the decision in Nathuram v. Shoma Chhagan6, can be supported on the principle laid down in Bhawal Sahu v. Baijnath Pertab Narain Singh7 that where the promise is to pay money which has been expended for necessaries, the estate of the minor may be liable not on the promise but because the money has been supplied ... .In the view we take it is not necessary to go into the question as to whether the decisions of the Madras High Court which would make the minor’s property liable for a promissory note passed by the guardian for a pre-existing debt of the father are correct. In our opinion, even in such cases, the promissory note must be passed by a proper or lawful guardian and not by a de facto guardian who is in possession and management of the estate without being lawfully authorised to do so. Such a de facto guardian cannot create any obligation on the minor’s estate by executing a bond which does not create a charge on the estate." The Madras decisions on the question of promissory notes are not very clear. The first case to which reference may be made in this decision in Ramaswami Mudaliar v. Sellathamma1. That was a case of a widow’s promissory note. It was held that it did not bind the reversioners as the widow’s estate was a life estate and any contract made by her could not bind the reversioners after her death. The following observations were made: " Prima facie a note is merely a personal security, and I cannot say that the plaint alleges such a state of facts as would by operation of Hindu law, render it binding on the defendants. The following observations were made: " Prima facie a note is merely a personal security, and I cannot say that the plaint alleges such a state of facts as would by operation of Hindu law, render it binding on the defendants. In this case the widow had not acted as the representative of the estate and hence her act was not binding on the reversioners. It was further said: " A promissory note is evidence of a debt, and I conceive a suit on a promissory note made by a Hindu father would well lie against sons joined in the suit with the father as defendants on allegations that the debt was incurred for proper family purposes." These observations lead to the conclusion that a suit may be brought on the debt itself both against the father and the son and the son would be liable. If the debt is of a binding character, then the promissory note can be tendered as evidence in support of the debt. The next decision is in Subramania Ayyar v. Arumugha Chetty2. The mother of a minor executed as his guardian a promissory note in respect of a debt for which the son’s share in the ancestral estate was liable at the time. On a suit being brought against the minor on the note, it was held that the defendant was liable on the note to the extent of his share in the ancestral estate. Prior to the execution of the note the members of the family had entered into an arrangement for a partition in accordance with which as between the members of the family the defendant was to be liable for the amount of the note. At the time of the execution of the note the defendant’s share of the ancestral estate was liable in respect of the original debt. At the time of the execution of the note the defendant’s share of the ancestral estate was liable in respect of the original debt. The Privy Council cases Waghela Rajsanji v. Sheikh Masluddin3 and Indur Chunder Singh v. Radhakishore Ghose4, were distinguished on the ground that in these cases the guardian purported to act on behalf of a ward so as to impose a personal liability upon the latter, there being no pre-existing liability on the part of the ward at the time the guardian entered into the contract and that in the present case the effect of the guardian’s contract was to keep alive a liability to which, at the date of the contract, the minor’s share of the ancestral estate was alfeady subject. In Krishna Chettiar v. Nagamani Ammal5, it was held that a negotiable instrument executed by the guardian of a Hindu minor for purposes binding on the minor is enforceable against the minor’s estate though the instrument was not signed by the executant in his capacity as guardian and the minor was not personally liable on the instrument. Reference was made to certain provisions of the Negotiable Instruments Act, and then it was observed as follows: " The Indian Legislature has not thought fit to lay down any general rules applicable to all cases of representation. The case of one person signing for another who is sui juris is not in pari passu with that of a person executing a document on behalf of another who is incapable of contracting." It was further observed: " As we are not hampered by any legislative provision regarding documents executed on behalf of a minor, we must be guided by the principles of Hindu law in deciding such cases The true test reeardine the binding nature of a guardian’s contract was laid down in the well-known cases of Hunoomanpersaud Panday’s case6......The true principle is that where the validity of a transaction has to be looked at from two standpoints each of them should be regarded as supplementing the other The doctrine of Hindu law is not to be ignored because a contract coming under its pur. view is also regulated by another provision of law .... Mr. view is also regulated by another provision of law .... Mr. Bhashyam Ayyangar sought to distinguish this case, Subramania Ayyar v. Arumuga Chetty1, on the ground that the claim in it was for the debt evidenced by ihe note and not on the note itself. We do not think this distinction has any substance. Moreover, paragraph 4 of the plaint in this case refers to the binding character of the debt. We must, therefore, hold that the estate of the minor is liable for the debt." In Swaminatha Odayar v. Natesa Iyer2, Reilly and Cornish, JJ., held that the guardian of a minor cannot impose a personal liability on the minor by executing a promissory note on his behalf even for necessary purposes and distinction was drawn between the liability arising from an ordinary debt and that arising for a debt secured by a negotiable instrument. It was observed that the special features of a promissory note distinguish it from a debt ordinarily incurred on behalf of a minor for necessary purposes, that a negotiable instrument is intended to be one which can pass from hand to hand, bearing its meaning on its face, as itself the basis and evidence of a money claim. Any qualification of the promise in a promissory note, such as that it is only to be enforced against a minor if necessity binding on the minor can be shown, is wholly foreign to the idea of a negotiable instrument. Cornish, J., observed that the plaintiff had chosen to sue upon the promissory note and not upon the consideration and the only liability under the note was the personal liability of the first defendant. If the suit had been on the consideration, the case might have been different. The correctness of this decision was considered by the Full Bench in Satyanarayana v. Mallayya3. The Full Bench was presided by Beasley, C.J., and Ramesam and King, JJ. The judgment was delivered by Ramesam, J., and it was observed as follows: " But the decision in Meenakshisundaram Chetty v. Ranga Ayyangar4 has been doubted in Swaminatha Odayar v. Natesa Ayyar2. In the latter case, the promissory note was executed by a person who was not the lawful guardian at all, but, at page 883, Reilly, J., proceeded to observe: ‘How can any guardian impose a liability upon a minor by executing a promissory note on his behalf? In the latter case, the promissory note was executed by a person who was not the lawful guardian at all, but, at page 883, Reilly, J., proceeded to observe: ‘How can any guardian impose a liability upon a minor by executing a promissory note on his behalf? If a promissory note is to effect anything it must create an unconditional personal liability.’ The doubt seems to arise because of the fact that the payee of the note can succeed against the minor and his estate only if certain facts are established. This is true. But I do not think this fact makes the liability under the promissory note one other than an unconditional personal liability. What is meant by that phrase is that the liability mentioned in the note should not be made contingent on some event, for if it is so made conditional or contingent upon the happening of some event, it will not conform to the definition of a promissory note. But so long as the form of the promissory’ note conforms to the definition of a promissory note under the Negotiable Instruments Act, it is not the less unconditional simply because when the matter goes to a Court of law and the defendant raises some defence, the plaintiff has got to establish certain facts before he can succeed against the minor. The truth is. that in no transaction entered into by a guardian on behalf of a minor can the opposite party succeed, if challenged, without establishing some facts such as that the transaction was for the benefit of the minor or some such other fact. That such a fact has got to be established does not, in my opinion, make the liability under the promissory note a conditional liability. On the doubt entertained by Reilly, J., it follows that a promissory note on behalf of a minor is impossible. Such a view is opposed to the trend of all the decisions in the High Courts including the Full Bench decision of Ramajogayya v. Jagannathan5. I am unable therefore to agree with the doubt suggested by Reilly, J. The actual conlusion in the case before him rested on the fact that the promissory-note was not executed by a lawful guardian at all. Otherwise, that decision must be regarded as overruled. I am unable therefore to agree with the doubt suggested by Reilly, J. The actual conlusion in the case before him rested on the fact that the promissory-note was not executed by a lawful guardian at all. Otherwise, that decision must be regarded as overruled. It was suggested that in such a case the suit should be on the debt and not on the note. But this seems to be a merely verbal distinction and not one of substance; Krishna Chettiyar v. Nagamani Ammal6. A note is only evidence of a debt. It is true that in the case of insufficiently stamped promissory notes parties are not allowed to fall back upon the debt where the debt and the making of the note were simultaneous. Such a principle is necessary to protect the interests of public revenue. It is not necessary to extend the principle beyond such a case. In my opinion, therefore, the plaintiff is entitled to a decree." With great respect ‘to the learned Judges of the Full Bench it seems to me that the view expressed by Reilly, J., was in accord with the provisions of the Negotiable Instruments Act and the learned Judges of the Full Bench were not right in holding that the liability remains an unconditional liability in spite of the fact that when the matter goes to a Court of law and the defendant raises some defence the plaintiff has got to establish certain facts before he can succeed against the minor. These remarks seem to me to be quite inconsistent to an action based on a promissory note simpliciter, say by the holder of it in due course. Defence of necessity is not a relevant defence in such a suit, the promise being that the amount will be payable on demand and on the face of the instrument. A promissory note on behalf of a minor may not be impossible provided it is given by the guardian making himself personally liable, because then it is his own note, but in view of the true nature of such a document it is not possible to hold that on the face of it a minor can be made liable. In my opinion, the view taken in Swaminatha Odayar v. Natesa Iyer1, was the correct view and the Full Bench erred in holding otherwise. In my opinion, the view taken in Swaminatha Odayar v. Natesa Iyer1, was the correct view and the Full Bench erred in holding otherwise. Moreover, I cannot in principle see any distinction evolved by the Full Bench between the case of a guardian de facto and a natural guardian. In the Lahore High Court there is no clear decision on the point that I have been able to trace, but there is a case of a promissory note given by a managing member of a joint Hindu family and it was held that such a note stands on a different footing than a promissory note ordinarily given under the Negotiable Instruments Act and that these promissory notes given by managing members are binding on other members provided necessity for the loans is made out. (Gandu Mal v. Taj Din2.) In the Allahabad High Court the matter was considered in Phalram v. Aiyub Khan3, and it was held that for a loan taken by a guardian on behalf of a minor for purposes of some necessity or for the benefit of the minor’s estate, the estate can be held liable by reason of the promise made by the guardian because money had been supplied for the benefit of the minor. It was said that this was in accord with the general principles of section 68 of the Indian Contract Act and it was further held that on equitable grounds the plaintiff was entitled to reover his money. A decree was made on the original loan and not on foot of the promissory note. The result of the decision therefore is that a minor cannot be made liable under a promissory note executed in his name by the guardian, whether he is the natural guardian or the de facto guardian. A promissory note is a peculiar kind of document and by its very nature it imposes an onerous liability on the minor. On the note itself, therefore, a minor cannot be sued or a claim decreed against his estate. It is also clear that if the guardian has given a promissory note making himself personally liable, then, he can be sued on the note and he can then seek re-imbursement from the minor’s estate and that otherwise the note can be sued as evidence of the debt. It is also clear that if the guardian has given a promissory note making himself personally liable, then, he can be sued on the note and he can then seek re-imbursement from the minor’s estate and that otherwise the note can be sued as evidence of the debt. There is no liability on the promissory note; the liability if any, is aliunde of the note, i.e., on the loan itself, if it is for the benfit of the estate or is given for a pre-existing liability that has been discharged by a fresh borrowing taken for the purpose and evidenced by the note. Unless there is a cause of action independently of the promissory note which can sustain the action, the minor cannot be made liable. No distinction, in my opinion, can be made in this respect between the case of a natural guardian or a de facto guardian. Both suffer from the same disability and the execution of the promissory note is outside the rule laid down in Hunoomanpersaud Panday’s case4. As regards the question whether a de facto guardian can acknowledge a debt and keep it alive, the matter is now set at rest by section 21 of the Indian Limitation Act. At one time there was conflict of decisions on this question between the Bombay and Madras High Courts on the one side and the Calcutta High Court on the other. The statute has now enacted that it is only the lawful guardian who can acknowledge a debt and keep it alive. Bakewell, J., of the Madras High Court took the view that a de facto guardian is a lawful guardian under section 21, vide Tiropayya v. Mallidi Ramaswami1. This decision however was doubted in Ramaswami Pillai v. Kasinatha2 and was finally overruled by the Full Bench in Chennappa v. Onkarappa3, and it was held that a de facto guardian could not acknowledge a debt that is due from the minor and extend the period of limitation. The view expressed by Bakewell, J., was also taken by a learned Judge in Patna, vide Gita Prasad v. Raghu Singh4. This decision was also considered by the Full Bench in Chennappa v. Onkarappa3. In an earlier case in Nagayya v. Narasayya5, it had been held that the natural father of an adopted son is not his lawful guardian. The view expressed by Bakewell, J., was also taken by a learned Judge in Patna, vide Gita Prasad v. Raghu Singh4. This decision was also considered by the Full Bench in Chennappa v. Onkarappa3. In an earlier case in Nagayya v. Narasayya5, it had been held that the natural father of an adopted son is not his lawful guardian. As pointed out by Dalip Singh, J., in Piara Lal v. Lajja Ram6, a de facto guardian as opposed to a de jure guardian implies that there is no jural relationship between them and that there may be analogous rights and liabilities conferred by a particular law upon a de facto guardian. It is clear therefore that the natural father was not the lawful guardian of the plaintiff and had no power to extend the period of limitation in respect of the earlier promissory notes. It has been held by their Lordships of the Privy Council in Amba alias Padmavathi v. Shrinivasa Kamathi7, that a natural father cannot have a deed registered on behalf of a minor and that such a registration is void. This decision is based on the provisions of the Indian Registration Act, sections 33 and 34. I am, therefore, of the opinion that the powers of a de facto and de jure guardian are the same except where by reason of statutory provisions a different result is apparent. Each case will have to be considered on its merits. For the purpose of the present case it may be stated that in the matter of raising simple money loans, mortgages and sales or entering into contracts which are benficial to the minor, their powers are the same but that in the matter of acknowledgment of debts and registration of deeds, their powers are different. The result therefore is that the Full Bench of the High Court of Madras has rightly held that the plaintiff’s natural father as the de facto manager of his estate had no authority to execute a promissory note on his behalf so as to bind his estate on the note itself and thus furnish a valid consideration for the subsequent sale of minor’s property. The question now arises whether independently of the promissory note there was any consideration which could sustain the transaction of sale in favour of the defendant and whether this promissory note can be used in any other manner to uphold the sale transaction.. The learned counsel for the appellant contended that this promissory note could be used as an acknowledgment of the pre-existing debt that was binding on the minor’s estate the debt being of his father having been renewed by his mother. The contention has to be repelled in view of the clear provisions of section 21 of the Indian Limitation Act. The learned counsel then urged that this promissory note validly discharged a pre-existing liability and that the act of the guardian was done to save the minor’s estate from the threat of an impending litigation and its results; that the forbearance of the lender to bring a suit on the natural guardian’s promissory note was sufficient consideration to uphold the sale. In my opinion, once the promissory note itself is ignored from consideration and it is held that the natural father had no power to renew the earlier note or to acknowledge the debt, then independently of the promissory note the creditor could not sustain any action against the minor’s estate, on which a decree could be passed in his favour. That being so, the sale deed has been rightly held to be without consideration as against the minor. In substance what happened was that the natural father renewed and acknowledged a previous debt by means of the promissory note which forms part of the consideration for the sale. He did not possess any of the powers and hence the sale deed effected to meet a non-existing liability of the minor is obviously without consideration. The learned counsel’s efforts to spin out some other consideration and to read in the renewal of the promissory note a discharge of a previous debt or forbearance to sue were merely ingenious attempts to get round a difficult situation and are on the face of it fallacious. If the note is eliminated there is nothing left on which the minor’s liability could be sustained. I am further of the opinion that in the present case even on the admitted facts stated in the High Court’s Judgment, the act of the guardian was outside the rule laid down in Hanoomanpersaud Panday’s case1. If the note is eliminated there is nothing left on which the minor’s liability could be sustained. I am further of the opinion that in the present case even on the admitted facts stated in the High Court’s Judgment, the act of the guardian was outside the rule laid down in Hanoomanpersaud Panday’s case1. When the de facto guardian executed the promissory note of 1931 it was the fourth renewal of the earlier promissory note. Neither the natural guardian nor the de facto guardian took any steps to repay the loan. The interest on the promissory notes were mounting up and the act of the guardian in 1931 in renewing the promissory note was to the detriment of the minor’s estate. The natural father should have known by that time whether he could pay the debt out of the minor’s income. He had then been in management of the estate for a considerable time. If there was income of the estate sufficient to repay the debt of the father, he should have discharged the promissory note out of that income. However, if he was of the opinion that there was no sufficient income to repay the debt then the only act that he could prudently do, was to sell a part of the estate to wipe out the liability. A mere renewal of his loan for another period of three years was certainly detrimental to the minor’s estate. The defendant in the witness box fully set out the circumstances under which he took a transfer of the minor’s estate. Assuming what he said is true still the case does not fall within the rule laid down in Hanoomanpersaud Panday’s case1. This is what the defendant stated in the witness box: “Between January and March, 1931, I sent word to plaintiff’s natural lather and wanted him to pay Rs. 5,000 as a part-payment towards Exhibit D-3, as I wanted that money for purchasing lands in another village under a contract already entered into. He and his clerk Rama Rao told me that they would sell paddy which they had in stock and pay me the said sum of Rs. 5,000 whenever I wanted. That contract fell through and the said amount was not paid to me. Then Exhibit D-3 was renewed by the plaintiffs natural father China Seshaayya executing Exhibit D-2 at Tenali, in my house, on 22nd June, 1931. 5,000 whenever I wanted. That contract fell through and the said amount was not paid to me. Then Exhibit D-3 was renewed by the plaintiffs natural father China Seshaayya executing Exhibit D-2 at Tenali, in my house, on 22nd June, 1931. It was executed beyond three years after the prior pro-note, for the sub-court, Tenali, was closed from 18th April, 1931 to 22nd June, 1931, and the suit had to be filed in that court. Even prior to 23rd April, 1931, I sent word to him to come and pay the amount and he said that the Court vacation had commenced and that he would come and settle within the vacation, but he did not do. So, I wanted to file a suit on the re-opening date of the Sub-Court, and apply for attachment before judgment of the plaintiff’s properties. For that, I got a list Exhibit D-9 of his properties .... I did not file the suit, because on 21st June, 1931, China Seshayya turned up with his clerk Rama Rao, and said that he would renew the debt, as he had no money to pay. Because I had information that he had executed or attempted to execute some mortgages, I was not willing to take a pro-note; but he swore before me that he had not executed any mortgage and that within a short time after renewal, he would settle the claim. So, I took the renewal Exhibit D-2.” I have already pointed out that there was relationship of counsel and client between the plaintiff’s father and the defendant. Even the natural father of the plaintiff was engaging the defendant as his pleader. In cross-examination the defendant admitted that the plaintiff was his client till 1925. On the question of the filing of a suit the defendant deposed as follows: “I did not issue a registered notice. I attempted only to file a suit (Exhibit D-3). I did not purchase court-fee stamps. As he sent word to me that he would come and settle the claim. I did not get a plaint drafted earlier. I could have indented for stamps and filed a suit in the evening of the re-opening date.....In O.S. No. 51 of 1932, I deposed that between 1923 to 1932, they did not make any payments because I did not want payments ..... I did not get a plaint drafted earlier. I could have indented for stamps and filed a suit in the evening of the re-opening date.....In O.S. No. 51 of 1932, I deposed that between 1923 to 1932, they did not make any payments because I did not want payments ..... I have deposed in O. S. No. 51 of 1932 that in March-April, 1931, the plaintiff had sufficient money or paddy to pay me Rs. 5,000, whenever I demanded; and I stated so because China Seshayya told me that he would pay whenver wanted. I had no personal knowledge that the plaintiff had money or paddy at that time to pay my debt. But I know personally that Chelamayya’s family owned about 70 acres and also some outstandings; of the 70 acres, about 20 acres were dry and 50 wet; and part of those 20 acres also has since been converted wet.” From these statements of the defendant it is quite clear that to the knowledge of the lender and the alienee there were funds of the minor in the guardian’s hands out of which the debt could have been paid. He knew that the minor had sufficient income, and that he was being promised payment out of that income. He made no inquiries. He merely relied on the statements of the natural father. He was not realizing the money because he did not want to be paid. It seems it was a good investment for him in view of the rate of interest. In these circumstances this is not a case that falls within the rule laid down by their Lordships of the Judicial Committee in Hanoomanpersaud Panday’s case1. It is not a case of a bona fide lender who by looking into the necessities of the minor was getting promissory notes renewed, but it is a case of a creditor who was keeping the money invested in the minor’s estate as an investment for his own benefit, regardless of the consequences to the minor’s estate of such indebtedness. It seems to me that neither the mother nor the natural father made any serious attempts to pay the loan of the father out of the income of the estate because of the regard for the defendant who was their lawyer and also wanted the money to remain invested on good rate of interest. It seems to me that neither the mother nor the natural father made any serious attempts to pay the loan of the father out of the income of the estate because of the regard for the defendant who was their lawyer and also wanted the money to remain invested on good rate of interest. There was no serious threat to the minor’s estate by the lender when the promissory not was renewed or the sale was effected. It is true . . . that a suit could have been filed on the last day of limitation, but no serious steps had been taken to file it. No notice of demand had been given to the minor or to his guardian. No court-fee stamps had been purchased and no plaint had been drafted. The view of the trial Judge that attachment before judgment was averted by this act of the guardian is obviously wrong. No Court could have issued such an order in respect of minor’s estate particularly when the minor was incapable of alienating it. The threat of attachment before judgment was an idle one and could not affect the minor in any way. For the reasons given above I am of the opinion that the Full Bench decision must be sustained and the appeal dismissed with costs. As regards the other appeal, the defendant is in a worse position than in the above case. As already indicated, on the basis of the guardian’s promissory note no liability can be fastened to the minor. It has been held by the District Judge that there was no necessity for the sum of Rs. 2,060 borrowed by the mother. The only question is whether the renewal of the promissory note by the de facto guardian could be held to be an act of necessity. As already noticed, the debt due by the father on the promissory note of the 5th June, 1923, was Rs. 1,46573-5. On the 16th April, 1925, the widow executed a promissory note in the sum of Rs. 4,540-6-8. out of which Rs. 2,060 were not for necessity. The last promissory note given by the mother was on the 6th April, 1928. She died in June, 1928 and on 21st September, 1928, within three months of her death, the promissory note was renewed by the natural father. 4,540-6-8. out of which Rs. 2,060 were not for necessity. The last promissory note given by the mother was on the 6th April, 1928. She died in June, 1928 and on 21st September, 1928, within three months of her death, the promissory note was renewed by the natural father. In this case I can find no necessity whatsoever for the renewal of this promissory note within six months of the earlier promissory note by the natural guardian. This seems to have been a wholly unwarranted act of the natural father. At the time of the renewal of the promissory note there was no threat of any kind of the minor’s estate. The earlier promissory note given by the mother already existed. No satisfactory explanation has been given for the necessity for renewing the note on 19th September, 1931, and the waiting till 1934 for the sale. The natural father may have done his best for the minor, but these acts of his are of an improvident character and are wholly outside the rule laid down in Hanoomanpersaud Pandays’ case1. It was argued by the learned counsel for the appellant that by executing the sale deed in question the guardian bona fide settled a disputed claim, and .that such a settlement by itself formed a good consideration for the sale deed. This argument has to be stated and rejected, The creditor got the whole of his money and relinquished no part of his claim and hence there was no question of give and take between the parties to support the point argued before us. Further in view of the finding of fact that the item of Rs. 2,060. was without necessity, it is obvious that the contention could not be sustained. In my opinion, the High Court was perfectly right in dismissing the second appeal and I would also dismiss this appeal with costs. V.S. ----- Appeal dismissed.